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2025 DIGILAW 403 (HP)

Dharam Singh v. State of H. P.

2025-03-19

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant Dharam Singh has filed the present application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, (hereinafter referred to as ‘the B.N.S.S.’), for releasing him on bail, during the pendency of the trial, in case FIR No.10 of 2024, dated 22.03.2024, registered with Women Police Station, Una, District Una, H.P., under Section 376 of Indian Penal Code (hereinafter referred to as ‘the IPC’), and Section 4 of Prevention of Children from Sexual Offences, (hereinafter referred to as ‘POCSO Act’,). 2. According to the applicant, he is innocent person and has falsely been implicated, in this case. According to him, the investigation, in the present case is complete. 3. The police is stated to have submitted the charge sheet, upon which, the competent Court of law has taken the cognizance, charges have been framed and the case has been listed for PWs and child victim has been examined. 4. Highlighting the statement of the child victim, which she had made before the Court of learned Special Judge, Una, it has been prayed that the statement of the child victim does not inspire confidence. 5. Relying upon the medical report of the child victim, as well as, report of the RFSL, it has been pleaded by the applicant that the allegations of the child victim stand falsified. 6. The applicant has termed the case of the prosecution, as false. In addition to this, the statement of PW-3, has also been relied upon to take benefit of bail by pleading that said witness, when appeared in the witness box, has turned hostile. The applicant has also annexed the copies of the statements of friend of the child victim, PW-5, as well as, child victim. 7. The applicant, has earlier tried his luck by moving similar bail application before the Court of learned Special Judge, Una, but, the same was dismissed vide order dated 03.12.2024. 8. Apart from this, learned counsel appearing for the applicant has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 9. On the basis of the above facts, a prayer has been made to allow the bail application. 10. Apart from this, learned counsel appearing for the applicant has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 9. On the basis of the above facts, a prayer has been made to allow the bail application. 10. When put to notice, the police has filed the status report disclosing therein, that on 22.03.2024, the complainant (name withheld), alongwith her brother and child victim appeared before the police and moved the complaint, mentioning therein, that she used to perform religious rituals in ‘Mata Sheravali Temple’ at place ‘X’ (name withheld). The child victim is her daughter, aged about 12 years and she is studying in Government Middle School ‘Z’ (name withheld). 10.1. According to the complainant, a day prior to making of the complaint, the child victim had gone to her friend’s house, and the child victim had told the complainant that she will come back after 2-3 hours. When the complainant tried to contact her daughter on phone, the child victim had not picked up her call. After sometime, she called back and told that the father of her friend i.e. the applicant, had done wrong act with her. Thereafter, complainant and her brother took the child victim back to their home, where, she had disclosed all the facts of the incident. 10.2. On the basis of the above facts, police has registered the case under Section 376 of IPC and Section 4 of POCSO Act. On 22.03.2024, statement of the child victim was got recorded under Section 161 of Cr.P.C. in the presence of her mother. On 22.03.2024, medical examination of the child victim was conducted in Regional Hospital, Una and doctor had deferred the final opinion, till the receipt of the FSL report. The physical evidence so collected, by the police, was also taken into possession. On 22.03.2024, the applicant was arrested and he was also medically examined. The physical evidence, so collected, by doctor, was handed over to the police and the same was sent to RFSL, Dharamshala. 10.3. During the investigation, the documentary proof of date of birth of child victim was taken into possession, according to which, the date of birth was found to be 08.11.2011. Thereafter, report from RFSL, Dharamshala, was received. The physical evidence, so collected, by doctor, was handed over to the police and the same was sent to RFSL, Dharamshala. 10.3. During the investigation, the documentary proof of date of birth of child victim was taken into possession, according to which, the date of birth was found to be 08.11.2011. Thereafter, report from RFSL, Dharamshala, was received. 10.4 After the completion of the investigation, police filed the charge sheet in the competent Court of law, upon which, the cognizance has been taken, charges have been framed and the case was listed for PWs on 12.03.2025. 11. On the basis of the above facts, a prayer has been made to dismiss the application. 12. First of all, so far as the argument of the learned counsel appearing for the applicant, qua the fact that statements of the child victim and her friend PW-5 are not confidence inspiring, is concerned, the applicant is before this Court, in bail proceedings and it is the sole prerogative of the learned trial Court to consider the evidence, which has been recorded before it, in order to determine the guilt of the accused. The said power of the learned trial Court cannot be usurped by this Court, by discussing the evidence, so recorded, before the learned trial Court. Moreover, at the time of deciding the application, the detailed discussion about the evidence or case of the prosecution should be avoided, as it may cause prejudice to the case of the prosecution, as well as, to the accused (applicant). 13. So far as the argument of the learned counsel appearing for the applicant, qua the fact that PW-5 has turned hostile, is concerned, it is no longer res integra that the evidence of the hostile witness does not efface from the record and it is the prerogative of the learned trial Court, to consider the evidence of the hostile witness alongwith the other evidence before it. 14. The applicant has been arrested in a case registered, under Section 376 of IPC and Section 4 of POCSO Act, and in case, he is ordered to be released on bail, it may give a wrong signal to the society that after committing such an offence with the child victim, applicant is moving freely in the society. 15. 14. The applicant has been arrested in a case registered, under Section 376 of IPC and Section 4 of POCSO Act, and in case, he is ordered to be released on bail, it may give a wrong signal to the society that after committing such an offence with the child victim, applicant is moving freely in the society. 15. Moreover, considering the legislative intent of the legislature in enacting POCSO Act, this Court is of the view that the provisions of POCSO Act, are special in nature and those provisions should be interpreted literally, not liberally. 16. Even otherwise, keeping in view the pace of the trial, it cannot be said that there is any undue delay in the trial. 17. Considering the facts, in its entirety, in the considered opinion of this Court, the applicant is not able to make out a case, for grant of bail, in this case. As such, the present application is dismissed. 18. 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.