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2025 DIGILAW 300 (HP)

Gulva v. State of Himachal Pradesh

2025-03-07

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. 1. Applicant-Gulva has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’) for releasing him on bail, in case FIR No.80 of 2024, dated 10.09.2024, registered under Sections 64, 351 (2), 332 of the Bharatiya Nyaya Sanhita, (hereinafter referred to as BNS), 376 of Indian Penal Code (hereinafter referred to as IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as the POCSO Act’) with Police Station, Kihar, District Chamba, H.P., on the ground that he is innocent person and has falsely been implicated, in this case. 2. According to the applicant, he is from respectable family, having deep roots in the society and is permanent resident of the address, as mentioned in the application. 3. The applicant, has given certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail. 4. The applicant has further pleaded that the investigation, in the present case, is complete and the competent Court of law has taken the cognizance and charges have been framed against him. Some of the prosecution witnesses are also stated to have been examined. 5. According to him, the star witness of the prosecution i.e. child victim, when appeared in the witness box, has turned hostile. 6. It is the case of the applicant that he is suffering from cancer and is under going Chemotherapy, radiotherapy in Dr. Rajendra Prasad Government Medical College, Kangra at Tanda, H.P., for the last more than two years. 7. The applicant has also highlighted that at the alleged time of incident, i.e. in the month of September, 2023 also, he was undergoing the treatment of Chemotherapy. 8. Applicant had also tried his luck by moving the similar application before the Court of learned Special Judge, Chamba, District Chamba, H.P., however, the said application was dismissed, vide order dated 15.01.2025. 9. On the basis of the above facts, learned counsel for the applicant has prayed that during the pendency of the trial, the applicant may be released on bail. 10. When, put to notice, the police has filed the status report. 9. On the basis of the above facts, learned counsel for the applicant has prayed that during the pendency of the trial, the applicant may be released on bail. 10. When, put to notice, the police has filed the status report. As per the copy of the FIR, which has been annexed with the application, the present case was instituted on the statement of father of the child victim, who has put the criminal machinery into motion, by moving the complaint, before the police, mentioning therein, that he is resident of the address, as mentioned in the application, and is ill. His wife and daughter, alongwith their cattle, were residing at place ‘X’. (name withheld) where, they were having their cowshed and adjoining to their cowshed, applicant-Gulva is also having his cowshed: 10.1 According to the complainant, he found his daughter (child victim) perplexed. On inquiry, she has disclosed that she is repeatedly being raped by applicant- Gulva and according to complainant, child victim also disclosed him that the complainant used to threaten her, that in case, she would disclose this fact to anyone, he would do away with her life. The girl child is also stated to be a simpleton girl. As such, a prayer has been made to take action, against the applicant, upon which, the police registered the FIR in question. 10.2. Thereafter, investigation, in this case, was conducted. The child victim was medically examined. The physical evidence, so collected by the doctors, was sent to RFSL, Dharamshala for examination. The applicant was arrested on 10.09.2024 and was produced before the Court on 10.09.2024. Thereafter, the spot map was prepared in the presence of the child victim, from where, the physical evidence was collected and the same was sent to SFSL, Junga. 10.3. During the investigation, age of the victim was found to be 18 years and 8 months, as such, Section 4 of the POSCO Act was deleted and Section 6 has been added. The statement of the child victim was got recorded by producing her, before the Court of learned Judicial Magistrate First Class, Chamba on 13.09.2024. 10.4. After receiving the report from SFSL, Junga, the police filed the chargesheet, upon which, the competent Court of law has taken the cognizance, charges have been framed and case is now fixed for PWs. There are 25 prosecution witnesses, out of which, one witness has been examined. 10.4. After receiving the report from SFSL, Junga, the police filed the chargesheet, upon which, the competent Court of law has taken the cognizance, charges have been framed and case is now fixed for PWs. There are 25 prosecution witnesses, out of which, one witness has been examined. 10.5. Apart from this, it has also been apprehended that in case, the applicant is released on bail, he may coerce the witnesses. 11. On the basis of the above facts, a prayer has been made to dismiss the application. 12. Heard. 13. In this case, the applicant has placed on record photocopy of the statement of child victim, recorded before the learned trial Court. No doubt, the child victim has not supported the case of the prosecution and resiled from her earlier statement, but, no benefit could be derived by the applicant on this ground, as the evidence of the hostile witness does not efface from the record and it is the sole prerogative of the trail Court to consider the evidence including the evidence of a hostile witness. However, keeping in view the fact that during investigation, age of the child victim was found to be 18 years and 8 months and that the applicant, in this case, was arrested on 12.09.2024, this Court is of the view that the conclusion of the trial against the applicant will take sufficient long time, as, out of 25 prosecution witnesses, only 1 witness has only been examined. As per the status report, case is now listed for 03.04.2025 and 07.04.2025, that too, for examination of the witnesses, at Serial No. 4, 5, 6 and 13 only. 14. So far as the apprehensions, which have been expressed by the police, in this case, are concerned, for those apprehensions, reasonable conditions can be imposed, in case, the applicant is ordered to be released on bail, as, the applicant is the permanent resident of District Chamba and it cannot be apprehended that in case, he is ordered to be released on bail, he may not be available for the trial. 15. Even otherwise, as per the documents, annexed with the application, the applicant is undergoing treatment in Dr. Rajendra Prasad Government Medical College and Hospital Tanda. 16. In view of the above discussions, this Court is of the view that the applicant is able to make out a case for his release. 17. 15. Even otherwise, as per the documents, annexed with the application, the applicant is undergoing treatment in Dr. Rajendra Prasad Government Medical College and Hospital Tanda. 16. In view of the above discussions, this Court is of the view that the applicant is able to make out a case for his release. 17. Considering all these facts, this Court is of the view that the present bail application is liable to be allowed and is accordingly allowed. 18. Consequently, the applicant is ordered to be released on bail in case FIR No.80 of 2024, dated 10.09.2024, registered under Sections 64, 351 (2), 332 of BNS, 376 of IPC and Section 6 of POCSO Act, 2012, with Police Station Kihar, District Chamba, H.P., on his furnishing personal bonds, in the sum of Rs. 50,000/- with one surety of the like amount, to the satisfaction of the learned trial Court. 19. This order, however, shall be subject to the following conditions: a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; d) The applicant shall not leave the territory of India without the prior permission of the Court. 20. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application. 21. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant. 22. The Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Chamba, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 23. 22. The Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Chamba, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 23. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of District Jail, Chamba, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Chamba. The Superintendent of District Jail, Chamba, Himachal Pradesh, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.