Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 908 (HP)

Shubham v. State of Himachal Pradesh

2025-05-05

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant-Shubham has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘ BNS S ’), for releasing him on bail, during the pendency of trial, arising out of FIR No.112 of 2024, dated 22.11.2024, registered under Section 64 of Bharatiya Nyaya Sanhita (hereinafter referred to as the ‘ BNS ’) and Sections 4 and 6 of the Prevention of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’), with Police Station Kandaghat, District Solan, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated and arrested by the Police, in this case. 3. The applicant has asserted the fact that the entire investigation of the Police is stated to be soiled with malice and with sole motive to implicate the applicant. 4. As per the applicant, the investigation, in the present case, is complete and except the present case, no other case is stated to have been registered against the applicant. 5. The applicant has also tried his luck by moving the bail application, before the Court of learned Additional Sessions Judge, Fast Track, Special Court (POCSO), Solan, however, his application was dismissed, vide order, dated 27 th January, 2025. 6. The applicant has also pleaded that the child victim has not supported the case of the prosecution. 7. Apart from this, the 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. 8. On the basis of the above facts, a prayer has been made to release the applicant on bail, during the pendency of the trial. 9. When put to notice, the police has filed the status report, disclosing therein, that on 22 nd November, 2024, from police booth IGMC, a telephonic information was received by Police Post Chail, that the child victim has been referred to IGMC, Shimla from Regional Hospital, Solan, as, she had consumed the poisonous substance. 9.1. During treatment, it was found that the child victim is pregnant, as such, a prayer was made to take action, upon which, ASI Jai Prakash, along with other police officials, reached IGMC Shimla. The child victim was found to be admitted in Children Ward PICU, IGMC, Shimla. 9.2. 9.1. During treatment, it was found that the child victim is pregnant, as such, a prayer was made to take action, upon which, ASI Jai Prakash, along with other police officials, reached IGMC Shimla. The child victim was found to be admitted in Children Ward PICU, IGMC, Shimla. 9.2. After obtaining the medical opinion from the doctor, the statement of the child victim was recorded in which, she has disclosed that she is resident of the address, as mentioned in the complaint and studied upto 9 th Class, in GSSS ‘X’. She has also stated that her age is about 17 years and her date of birth is 31.07.2007. From the last two years, she has not attended the school and she along with her parents is residing at place ‘X’ in a temporary shed. 9.3. According to the child victim, prior to this, the entire family used to reside at the house of Vikas Thakur for 6-7 years. During that period, she came in contact with applicant Shubham. Applicant had given an offer to the child victim to marry her and on the pretext of marriage, he had raped her on 2-3 occasions, however, she could not remember the exact date and month of the said incident. 9.4. Thereafter, when the father of the child victim has shifted his residence, then, again, Shubham came there and in the month of October, 2024, raped her on the pretext of marriage. On 20.11.2024, the child victim called applicant Shubham about the reason for not talking to her, upon which, the applicant told her that he does not want to have any relations with her nor he will talk to her. Due to this fact, the child victim consumed half glass of phenyl. Thereafter, she was brought to Hospital, She has alleged that the accused had raped her on the pretext of marriage and due to this fact, she got pregnant. 9.5. On the basis of the above facts, a prayer has been made to the police, to take action, upon which, the police has registered the FIR and the criminal machinery swung into motion. 10. During investigation, the child victim was medico-legally examined and the physical evidence, so collected by the doctors, was taken into possession. Accused was arrested on 22.11.2024, at 11.55 p.m. He was also medico-legally examined. 11. 10. During investigation, the child victim was medico-legally examined and the physical evidence, so collected by the doctors, was taken into possession. Accused was arrested on 22.11.2024, at 11.55 p.m. He was also medico-legally examined. 11. During investigation, the documents pertaining to the date of the birth of the child victim were obtained, according to which, her date of birth was found to be 31.07.2007. 12. On 7.1.2025, the child victim suffered a miscarriage. The foetus was preserved for DNA and as per the DNA report, the accused was found to be biological father of the product of conception. 13. After completion of the investigation, the police filed the charge sheet, which is stated to be pending before the Court of learned Additional Sessions Judge, Fast Track Special Court (POCSO), Solan and now, the case is listed on 21 st May, 2025, for evidence of PWs at serial No.22 to 25. 14. On the basis of the above facts, a prayer has been made to dismiss the application. 15. First of all, coming to the arguments of the learned counsel appearing for the applicant that the child victim, when appeared in the witness box, before the learned trial Court, has turned hostile. It is the sole prerogative of the learned trial Court to consider the evidence of the hostile witnesses and the said prerogative of the learned trial Court cannot be taken away by this Court, while deciding the question of bail. 16. It is not in dispute that the material witnesses have been examined, including the child victim and the applicant is having no criminal antecedents except the present one. 17. The applicant is permanent resident of District Sirmaur, as such, it cannot be apprehended that in case, the applicant is released on bail, he may not be available for the trial or he may coerce the witnesses. 18. The chances of conclusion of trial against the applicant, in near future, are not so bright. The age of the applicant in the status report has been mentioned, as 28 years, and in case, the applicant is ordered to be kept in judicial custody, it would be nothing, but, pre-trial punishment, which is prohibited under the law. 19. In this case, the notice of the application was also issued to the victim, who appeared, along with her parents and has opted not to contest the application. 20. 19. In this case, the notice of the application was also issued to the victim, who appeared, along with her parents and has opted not to contest the application. 20. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. Consequently, the applicant is ordered to be released on bail in case FIR No.112 of 2024, dated 22.11.2024, registered, under Section 64 of the BNS and Sections 4 and 6 of the POCSO Act, with Police Station Kandaghat, District Solan, 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. 21. This order of release, however, shall be subject to the following conditions :- “a) that the applicant shall make herself 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) that the applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) that 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 Office; and d) that the applicant shall not leave the territory of India without the prior permission of the Court.” 22. Any of the observations made herein above 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. 23. 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 bail applicant/petitioner. 24. The Registry is directed to forward a soft copy of the bail order to the Superintendent Jail, District Jail, Solan, District Solan through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 25. 24. The Registry is directed to forward a soft copy of the bail order to the Superintendent Jail, District Jail, Solan, District Solan through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 25. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent Jail, District Jail, Solan, District Solan, is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent Jail, District Jail, Solan, District Solan, 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.