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2025 DIGILAW 605 (HP)

Abhay Singh @ Abbu v. State of Himachal Pradesh

2025-04-03

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. 1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 147 of 2024, dated 24.9.2024, for the commission of offences punishable under Sections 64(2) and 351(3) of Bharatiya Nayaya Sanhita, 2023 (BNS) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act), registered at Police Station Indora, District Kangra, H.P. As per the prosecution, the victim made a complaint regarding a sexual abuse. She became pregnant and had to abort the fetus twice. The police registered an FIR and arrested the petitioner. There is no medical evidence to connect the petitioner with the commission of crime. The victim stated in the FIR that she had aborted twice. She stated in her statement made to the police that no abortion had taken place. The material objects collected by the prosecution do not connect the petitioner with the commission of a crime. The FIR was lodged after a delay of two years. The petitioner is aged 20 years. He belongs to a respectable family. He has been behind the bars since 24.9.2024. No fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by the terms and conditions which the Court may impose. Hence the petition. 2. The petition is opposed by filing a status report asserting that the victim was studying in class 10 th . The petitioner was sexually abusing the victim and threatening her. The victim had aborted twice. The police registered the FIR and conducted an investigation. It was found that the victim became unconscious on 24.9.2024 during the morning assembly. She was taken to the hospital, and she revealed to her teacher that the petitioner was sexually abusing her. The petitioner had raped the victim and threatened to kill her in case the incident was revealed to any person. The victim was born on 23.1.2010 and was minor on the date of the incident. The police seized the material objects and sent them to FSL. The report of FSL has been received. The police filed the charge sheet before the Court. The matter is listed for the statement of the victim on 24.4.2025. Hence, the status report. 3. I have heard Mr. Arun Sehgal, learned counsel for the petitioner and Mr. The police seized the material objects and sent them to FSL. The report of FSL has been received. The police filed the charge sheet before the Court. The matter is listed for the statement of the victim on 24.4.2025. Hence, the status report. 3. I have heard Mr. Arun Sehgal, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State. 4. Mr Arun Sehgal, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. There is a delay of two years in reporting the matter to the police. There is a contradiction in the testimony of the victim recorded by the police and the FIR, which makes the prosecution case highly doubtful. The petitioner is a student, and his future would be ruined in case of his continued detention. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner is involved in the commission of a heinous offence. He had raped and impregnated the victim. The statement of the victim has not been recorded and the petitioner can influence her in case of release on bail. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P. , 2024 SCC OnLine SC 3068 , wherein it was observed as follows: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra, (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: — “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh, (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the application for bail and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.”(Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. The status report shows that the petitioner had repeatedly raped the victim. The medical report corroborates the petitioner’s version regarding the commission of rape. 10. It was submitted that there is a discrepancy in the statement of the victim because she stated in the FIR that she had aborted twice, whereas she stated before the police that no abortion had taken place. This contradiction will not help the petitioner. The victim is a minor, aged less than 15 years, and it is not known whether she knows the meaning of the abortion or not. Therefore, nothing much can be made out of this discrepancy by the petitioner. 11. It was submitted that the report of the FSL does not corroborate the version of the victim because the petitioner’s DNA was not found in the material objects collected by the prosecution. The material objects were collected from the room in which the victim’s family was residing after the lapse of considerable time. Therefore, the absence of the petitioner’s DNA in the material object will not help the petitioner. The material objects were collected from the room in which the victim’s family was residing after the lapse of considerable time. Therefore, the absence of the petitioner’s DNA in the material object will not help the petitioner. It is trite to say that the statement of the victim of sexual assault has to be taken as correct unless there is something inherently improbable in it. No such inherent probability was shown in the present case, and the prosecution case cannot be doubted due to the non-corroboration from the material objects collected by the prosecution. 12. The submission of Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State that the petitioner can influence the witnesses in case of release on bail has some force. Since the statement of the victim has not been recorded, hence the release of the petitioner will not be proper for a fair trial. 13. It was submitted that there was a delay in reporting the matter to the police. This submission will not help the petitioner. It was laid down by Delhi High Court in Court on its Own Motion v. State , 2018 SCC OnLine Del 10301 that the children are generally reluctant to disclose the incident, and the disclosure happens over time. It was observed: “81. The dynamics of child sexual abuse are the same internationally. First and foremost, it is essential to understand the manner in which the children recount. Children do not disclose in one go but do so in piecemeal. To accord the same treatment to a child as one would to an adult would result in grave injustice. 82. It needs no elaboration that the children would be reluctant and unlikely to disclose an entire adverse experience in proper detail in their first statement to the police, let alone the necessary details. The fear for themselves or their family; an apprehension that they would be disbelieved; inability to identify themselves as victims; pressure or threats from the perpetrator; relationship to the perpetrator; fear of embarrassment, shame or self-blame; fear of stigmatization; lack of trust with the investigating agency amongst other would be some of the reasons which would act as barriers to a child making a disclosure of a complete incident in a single meeting. 83. There is great variation in how disclosure is de and studied. 83. There is great variation in how disclosure is de and studied. Disclosure is rarely a spontaneous event and it is more likely to occur: • slowly over time as part of a process. For some, it is a process that reoccurs and is never finished. Children and young people disclose abuse in many different ways • ranging from direct verbal statements to more subtle indirect methods. Some children will tell purposefully yet others will do so indirectly or only after being encouraged by others to talk Non-verbal disclosures are more common among young children and • can come about through letter writing, role-playing or drawing Bodily or physical signs of abuse can include stomach aches, encopresis • enuresis, adverse reactions to yoghurt or milk, or soreness in the genitals Emotional signs of abuse include fear, anxiety, sadness, acting out • without immediate cause, mood swings and reluctance to visit the perpetrator Behavioural signs can include sexualised playing with dolls, sexual • experimentation, excessive masturbation, or drawing sexual acts. However, such behaviours need to be considered in the context of individual, family and wider societal dynamics in which they occur Various models or stages of disclosure have been proposed including • staged, social exchange and social cognitive models. The models agree that disclosure is an interactive and dynamic process that is influenced by the way children conceptualise and make decisions about whom to tell and the reactions they might receive. 84. Children may disclose spontaneously (disclosure as an event) or indirectly and slowly (disclosure as a process). The child's type of disclosure may be influenced by their developmental features, such as their age at the onset of abuse and/or their age at the time of disclosure. For instance, younger children are more likely to spontaneously disclose than older children (Lippert, Cross, & Jones, 2009; London et al., 2005; Shackel, 2009). Understanding disclosure of abuse as a process may help adults to be patient and allow the child or young person to speak in their own way and their own time (Sorensen & Snow, 1991). It also helps adults maintain an awareness of any changes in behaviour or emotions that may indicate abuse is occurring or increasing. If you have suspicions that abuse is occurring, even if you are unsure, it is better to report your suspicions than to do nothing. It also helps adults maintain an awareness of any changes in behaviour or emotions that may indicate abuse is occurring or increasing. If you have suspicions that abuse is occurring, even if you are unsure, it is better to report your suspicions than to do nothing. (Responding to children and young people's disclosures of abuse CFCA Practitioner Resource— March 2015 Australian Government-Australian Institute of Family Studies) 85. Some children and young people may disclose when asked or after participating in an intervention or education program (Shackel, 2009). Others may initially deny that they have been abused if asked directly, or say that they forget, only to disclose later. Children and young people may disclose, only to retract what they have said later; however, this is relatively uncommon. The child or young person might say he or she made a mistake, lied, or that the abuse actually happened to another child. In cases with a higher likelihood of actual abuse, recantations are low (4-9% London et al., 2005). However, the stress of disclosing and receiving potentially negative responses from caregivers may lead some children to recant in an attempt to alleviate the stress (Hershkowitz, Lanes, & Lamb, 2007). 86. A recent qualitative study of disclosure among 60 young men and women in the United Kingdom observed eight forms of disclosure: direct, indirect verbal, partial verbal, accidental direct/verbal, prompted, non-verbal/behavioural, retracted and assisted. Partial disclosures were characterised by minimisation of the abuse, disclosing abuse of another person or disclosing other forms of abuse such as physical assault. Prompted disclosures were made in response to a direct inquiry about abuse while assisted disclosures involved a young person disclosing to another young person with the help of a friend. The authors note that children use a variety of techniques to disclose including direct or ambiguous verbal statements and non-verbal disclosure in the form of writing letters, reenacting abuse-type situations or drawing pictures for adults. Physical or bodily signs of child sexual abuse can include stomach aches, encopresis, enuresis, adverse reactions to yoghurt or milk (due to resemblance to semen), or soreness in the genitals (Jensen, 2005). Emotional signs can encompass fear, anxiety, and sadness, acting out without immediate cause, mood swings and reluctance to visit the perpetrator. Behavioural signs include sexualised playing with dolls, sexual experimentation, excessive masturbation, or drawing sexual acts (Finkelhor, 1994; Jensen, 2005). 87. Emotional signs can encompass fear, anxiety, and sadness, acting out without immediate cause, mood swings and reluctance to visit the perpetrator. Behavioural signs include sexualised playing with dolls, sexual experimentation, excessive masturbation, or drawing sexual acts (Finkelhor, 1994; Jensen, 2005). 87. Where children are concerned, the disclosure normally would tend to be a process, rather than a single incident or episode. It would take multiple interviews for an investigator or an interviewer to even establish trust in the mind of the child. Unfortunately, we have been unable to evolve any guidelines with regard to the investigation and prosecution of cases of child sexual abuse which are the subject matter of the POCSO Act, 2012, though the Central Government has suggested the following in the POCSO Model Guidelines: “The dynamics of child sexual abuse are such that often, children rarely disclose sexual abuse immediately after the event. Moreover, disclosure tends to be a process rather than a single episode and is often initiated following a physical complaint or a change in behaviour. In such a situation, when the child finally discloses abuse and a report is filed under the POCSO Act, 2012 more information will have to be gathered so that the child's statement may be recorded. Information so obtained will become part of the evidence. However, given the experience that the child has gone through, he is likely to be mentally traumatised and possibly physically affected by the abuse. Very often, law enforcement officers interview children with adult interrogation techniques and without an understanding of child language or child development. This compromises the quality of evidence gathered from the child, and consequently, the quality of the investigation and trial that are based on this evidence. The interviewing of such a child to gather evidence thus demands an understanding of a range of topics, such as the process of disclosure and child-centred developmentally-sensitive interviewing methods, including language and concept formation. A child development expert may therefore have to be involved in the management of this process. The need for a professional with specialized training is identified because interviewing young children in the scope of an investigation is a skill that requires knowledge of child development, an understanding of the psychological impact sexual abuse has on children, and an understanding of police investigative procedures. The need for a professional with specialized training is identified because interviewing young children in the scope of an investigation is a skill that requires knowledge of child development, an understanding of the psychological impact sexual abuse has on children, and an understanding of police investigative procedures. Such a person must have knowledge of the dynamics and the consequences of child sexual abuse, an ability to establish rapport with children and adolescents, and a capacity to maintain objectivity in the assessment process. In the case of a child who was disabled/physically handicapped prior to the abuse, the expert would also need to have specialised knowledge of working with children with that particular type of disability, e.g. visual impairment, etc.” 14. Thus, the delay in reporting the matter to the police is not fatal. 15. No other point was urged. 16. In view of the above, the present petition fails and the same is dismissed. 17. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.