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2025 DIGILAW 445 (HP)

Vicky v. State of H. P.

2025-03-22

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant-Vicky has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘ BNS S ’), for releasing him on bail, in case FIR No.81 of 2024, dated 13.10.2024, registered under Sections 64 of the Bharatiya Nyaya Sanhita , (hereinafter referred to as ‘ BNS ’) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 , (hereinafter referred to as the POCSO Act’), with Police Station, Anni, District Kullu, H.P. 2. According to the applicant, the case of the prosecution is false and he is innocent person. In order to buttress his contentions, the applicant has pleaded that the child victim had never made any such allegations, during her life time, as applicant has also accompanied the child victim alongwith his father for her treatment. 3. It is the further case of the applicant that the marriage of the child victim with the applicant was likely to take place in near future, but prior to that she had expired due to respiratory problems. It is also the case of the applicant that the police and doctor forced the father of the child victim to report the matter. 4. According to the applicant, the case of the prosecution is too fragile and could not sustain the judicial scrutiny by the Court. 5. On the basis of the above facts, Shri Manoj Pathak, learned counsel appearing for the applicant has argued that the investigation in the present case is complete and the competent Court of law has taken the cognizance and the evidence of the father of the child victim has been recorded, who also even not supported the case of the prosecution. To substantiate his arguments, learned counsel appearing for the applicant has placed on record the copy of the statement recorded by the learned Additional Sessions Judge, FTSC (Rape/POCSO), Kinnaur at Rampur Bushahr on 22.02.2025. All these facts have been pleaded to seek the relief, as claimed, in the application. 6. The applicant, has given certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail. 7. All these facts have been pleaded to seek the relief, as claimed, in the application. 6. The applicant, has given certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail. 7. Applicant had also tried his luck by moving the similar application before the Court of learned Additional Sessions Judge, Fast Track Special Court, Kinnaur at Rampur Bushahr, District Shimla, HP, however, the said application was dismissed, vide order dated 23.01.2025. 8. When, put to notice, the police has filed the status report, mentioning therein that the complainant got recorded his statement before the police disclosing therein that he is an agriculturists by profession. He was married about 23-24 years ago. He has been blessed with five children, four are girls and one is son. The child victim is his second daughter, who, according to him, is suffering from respiratory disease. The child victim came in contact with the applicant during fair at Anni. Thereafter, both of them have started meeting with each other and sometime applicant also came to their house. Two-three days prior to the date, when, he made the statement to the police, according to him, the respiratory disease of the child victim was aggravated, as such, she was taken to Anni hospital. The applicant, who came to their home four-five days prior to the said incident also accompanied him from Anni hospital and child victim was referred to Rampur, where, she remained admitted for three days and thereafter for further treatment, she was referred to IGMC Shimla. 8.1. On 12.10.2024, the complainant alongwith Vicky (accused), brought child victim to IGMC Shimla, where she was treated and certain tests were conducted. During her admission, the child victim disclosed that she is carrying the foetus of five months and he has named (accused) Vicky, as the person being source of the said foetus. During the treatment, child victim had expired. 8.2. Lastly, the complainant got recorded that the applicant in the month of May, 2024, forcibly developed illegal relations with the child victim, due to which, she was force to carrying foetus. 8.3. On 13.10.2024, the child victim had expired, as such, a request has been made to take action against the applicant, upon which, the FIR in question was registered. 8.4. Initial investigation was conducted by SI Sushil Kumar. 8.3. On 13.10.2024, the child victim had expired, as such, a request has been made to take action against the applicant, upon which, the FIR in question was registered. 8.4. Initial investigation was conducted by SI Sushil Kumar. Thereafter the postmortem examination of the dead body was got conducted on the request of the police. After the postmortem of examination, the dead body was handed over to the police and blood samples on FDA card and alongwith identification forms were filled and thereafter the dead body was handed over to the complainant. 8.5. The applicant was arrested on 14.10.2024 at 9:30 PM, Thereafter, he was also medically examined at Civil Hospital, Anni. The doctor has preserved the physical evidence so collected. The results from the laboratories received and according to the DNA report, accused-Vicky was found to be the biological source of the foetus. 8.6. After the completion of the investigation, charge sheet has been submitted and as per the status report, the case is now listed on 01.04.2025, for recording the statements of PWs, at serial Nos.2, 9 and 10. 8.7. Except the present case, according to the police, no other case has been found to be registered against him. However, it has been apprehended that the applicant has committed a serious offence and due to said act of the applicant, this fact, there is lot of resentment in the area. It has also been apprehended that in case, the applicant is released on bail, he may coerce the witnesses and allure them to depose in his favour and may also not be available for the trial. 9. On the basis of the above facts, a prayer has been made to dismiss the application. 10. In this case, learned counsel appearing for the applicant has vehemently been relied upon the statement of the father of the child victim, who, while appearing before the learned trial Court has not supported the case of the prosecution. 11. The evidence of the hostile witness does not efface, the factual position from the record and it is the sole prerogative of the learned trial Court to consider the evidence of the hostile witness, alongwith the evidence of the other prosecution witnesses, by discussing the evidenciary value of the statement of the hostile witness. 12. 11. The evidence of the hostile witness does not efface, the factual position from the record and it is the sole prerogative of the learned trial Court to consider the evidence of the hostile witness, alongwith the evidence of the other prosecution witnesses, by discussing the evidenciary value of the statement of the hostile witness. 12. While deciding the application for bail, this Court should not and could not user-up the prerogative of the learned trial Court to consider the evidence, which has been recorded before it. 13. In this case, learned Additional Advocate General has vehemently pointed out the DNA report according to which, the applicant was found to be the biological source of the foetus, which the child victim was carrying. 14. The said fact at this stage, clearly indicates towards prima facie guilt of the applicant and in case, the applicant is ordered to be released on bail, in that eventuality, it will give a wrong signal to the society that after committing such a heinous offence, the applicant is moving freely in the society. 15. Not only this, at this stage, the apprehension, which has been expressed by the police, in the status report, qua the fact that in case, he is ordered to be released on bail, he may coerce the witnesses and allure them to depose in his favour, cannot be said to be unfounded. The trial has commenced and the case is now listed for 01.04.2025, for recording the statements of PWs, at serial Nos.2, 9 and 10. 16. 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. 17. 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.