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2023 DIGILAW 79 (HP)

Akash Sagar @ Azad v. State of H. P.

2023-02-23

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. Petitioner is accused in case FIR No.78/22, dated 14.8.2022, registered under Sections 363, 366, 366-A, 376, 376D, 120B of the Indian Penal Code and Sections 4 and 6 of the POCSO Act, 2012, at Police Station, Gohar, District Mandi, H.P. 2. The petitioner is in custody since 26.8.2022. 3. Brief facts of the case are that on 14.8.2022, complainant-Shri Bodh Raj, reported to the police that his daughter (minor) had left the home at about 10:30 p.m. on 12.8.2022. It was suspected that she had been kidnapped by someone. The case was registered and investigation started. During investigation, the victim was recovered on 25.8.2022 from the house of petitioner at Agra in Uttar Pradesh. It has been concluded during investigation that one Bal Krishan @ Sahil Sharma, a co-accused in the case had taken the victim out of guardianship of her parents under a promise to marry her. The petitioner being a friend of Bal Krishan @ Sahil Sharma, had helped him in enticing away the victim and had also allowed his house at Agra, to be used as shelter for them. As per the case of the police, the victim was handed over to her father. She in her statement given to the police and also recorded, under Section 164, Cr.P.C, had alleged that Bal Krishan @ Sahil Sharma, had taken her with a promise to marry. She was known to Bal Krishan @ Sahil Sharma for about two months. She was also provide with mobile phone by Bal Krishan @ Sahil Sharma, through which, she had been in constant touched with him. On the asking of Bal Krishan @ Sahil Sharma, she had left her home on 12.8.2022 at about 10:30 p.m. and had reached the place known as Tunna, where both the accused persons were waiting for her in a taxi. They all firstly visited Mandi and stayed there, thereafter, they went to Sundernagar and finally to Agra. The victim further alleged that at Agra, co-accused Bal Krishan @ Sahil Sharma, had committed sexual intercourse with her twice. 4. A prayer has been made for grant of bail in favour of the petitioner on the ground that there is no allegation of rape or any other indecent behaviour of petitioner with the victim. He was not aware that the victim was below 18 years of age. 4. A prayer has been made for grant of bail in favour of the petitioner on the ground that there is no allegation of rape or any other indecent behaviour of petitioner with the victim. He was not aware that the victim was below 18 years of age. Bal Krishan @ Sahil Sharma and the victim were having love affair and both were ready to marry each other. The victim had herself proposed to leave the home on the pretext that her parents would not agree for the marriage. It is further submitted that the petitioner has no criminal antecedents. He is permanent resident of Village Teen Ka Nagla Pyare Lal House No.41/7, P.S. Tajgang, District Agra, Uttar Pradesh. 5. I have heard learned counsel for the parties and have also gone through the entire record carefully. 6. Record reveals that the victim has not alleged any act of sexual assault or any other indecent advance towards her by the petitioner. As per version of the victim, recorded during investigation, she had left her home on 12.8.2022 at 10:30 p.m. of her own. She had walked upto to village Tunna of her own, where she had met Bal Krishan @ Sahil Sharma and the petitioner waiting in a taxi. It can be inferred from the facts of the case that everything was preplanned. The victim was aged 17 years and 6 months at the time of alleged incident. It cannot be said that she did not have sufficient maturity to understand the consequences of her acts. 7. There is nothing on record to suggests that the petitioner was aware about the exact age of the victim. It is alleged against him that he had helped his friend Bal Krishan @ Sahil Sharma, as the said accused and the victim wanted to marry each other. 8. The above observations have been made only for the purposes of assessing the seriousness and gravity of allegations against the petitioner. 9. Learned Additional Advocate General submitted that supplementary challan has been filed and the report of SFSL Junga, suggests the involvement of petitioner also in some kind of sexual assault. The record, however, reveals that no such hypothesis has been drawn by the investigating agency. 9. Learned Additional Advocate General submitted that supplementary challan has been filed and the report of SFSL Junga, suggests the involvement of petitioner also in some kind of sexual assault. The record, however, reveals that no such hypothesis has been drawn by the investigating agency. Some part of the DNA report reveals that the DNA of the petitioner also matched, when some substance found on the “top” (apparel) allegedly belonging to the victim was analyzed. Be that as it may, no direct allegations have been levelled against the petitioner by the victim. The DNA report is in the nature of an expert opinion, which needs to be proved in accordance with law and requires appreciation at appropriate stage. 10. The petitioner is permanent resident of Village Teen Ka Nagla Pyare Lal House No.41/7, P.S. Tajgang, District Agra, Uttar Pradesh and there is no likelihood of his absconding or fleeing from the course of justice. The police has verified his antecedents and nothing has been found against the petitioner. The petitioner is in custody since 26.8.2022. The investigation is already complete and the petitioner cannot be ordered to be incarcerated for indefinite period. The trial of the case is likely to take considerable time before the conclusion. 11. Keeping in view the facts and circumstances of the case, the petition is allowed. Petitioner is ordered to be released on bail in case FIR No.78/22 dated 14.8.2022, registered under Sections 363, 366, 366-A, 376, 376D, 120B of the Indian Penal Code and Sections 4 and 6 of the POCSO Act, 2012, at Police Station, Gohar, District Mandi, H.P, on his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of learned trial Court. This bail order is, however, subject to the following conditions:- (i) That the petitioner will appear before the Court and the Investigating Officer whenever required; (ii) That he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing any facts to the Court or the police; (iii) That he will not tamper with the prosecution evidence nor he will try to win over the prosecution witnesses or terrorize them in any manner; (iv) That he will not repeat the offence, as is alleged to have been committed by him; (v) That he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case; (vi) That he will not leave India without prior permission of the Court. 12. Needless to say that the Investigating Agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner. 13. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.