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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
JYOTSNA REWAL DUA, J.
PRADEEP KUMAR S/O LATE SHRI TEK CHAND – Petitioner
Versus
STATE OF HIMACHAL PRADESH – Respondent
Criminal Misc. Petition (Main) No. 1299 of 2022
Decided On : 24-06-2022
Code of Criminal Procedure, 1973 - Section 439, 161 and 164 - Protection of Children from Sexual Offences (POCSO) Act - Section 4 - Indian Penal Code, 1860 - Section 363 and 376 – Kidnapping and Rape – Seeking Bail - Statement of prosecutrix was recorded under Section 161 CrPC, wherein she stated that via phone she had called bail petitioner informing him that she was coming to his home. Despite refusal on part of bail petitioner, prosecutrix on her own travelled in a bus and reached petitioner’s place. She went to petitioner’s home and slept there in separate room. Prosecutrix and bail petitioner went to a temple. Prosecutrix was sexually exploited by bail petitioner during intervening night – It is made clear that observations made above are only for purpose of adjudication of instant bail petition and shall not be construed as an opinion on merits of the matter.
Finding of the Court : Bail Petitioner is resident of Village, therefore, his presence can always be secured in the trial. Nothing is to be recovered from the petitioner. In the facts and circumstances of the case, no significant object will be achieved by keeping him confined any further. The apprehension that the petitioner can intimidate the prosecutrix and the prosecution witnesses can be taken care of by imposing stringent conditions upon the petitioner including the one that he will not contact prosecutrix and her family members and further that he will not threaten them in any manner whatsoever. Petitioner is ordered to be released on bail in aforesaid FIR on his furnishing personal bond in sum of Rs.50,000/- with one local surety in like amount to satisfaction of learned trial Court having jurisdiction, subject to conditions.
Result: Petition disposed of
ORDER :
1. Petitioner, who is an accused in FIR No. 27/2022, dated 14.02.2022, registered under Sections 363 and 376 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act (in short the Act), at Police Station Jogindernagar, District Mandi H.P. seeks bail under Section 439 of the Code of Criminal Procedure.
2. The prosecution case is that:
(ii) Statement of prosecutrix was recorded under Section 161 Cr.P.C. wherein she stated that via phone she had called the bail petitioner on 13.02.2022 informing him that she was coming to his home. Despite refusal on part of the bail petitioner, prosecutrix on her own travelled in a bus and reached petitioner’s place. She went to petitioner’s home and slept there in separate room. On 14.02.2022, prosecutrix and the bail petitioner went to a temple. Prosecutrix was sexually exploited by the bail petitioner during the intervening night of 14.02.2022.
(iii) Bail petitioner was arrested on 15.02.2022. Considering 1.6.2005 as the age of the prosecutrix entered in her date of birth certificate, Section 376 of the Indian Penal Code and Section 4 of the POCSO Act were incorporated in the FIR in question. Statement of prosecutrix was also recorded under Section 164 of the Code of Criminal Procedure.
(iv) The investigating agency has also received a report of the Regional Forensic Science Laboratory Mandi. Based upon this report, medical officer has opined that “since no semen/Blood of accused was detected in sample of the victim it cannot be commented that the Sexual Intercourse took place at the time victim reported to us at CH. JNR. Therefore the time of Sexual Intercourse cannot be commented upon as all sample shown Negative report.”
3. Learned counsel for the petitioner raised plea of false implication and innocence of the petitioner. Learned counsel argued that statement of the prosecutrix has since been recorded on oath during the trial, wherein she has not supported the version of the prosecution. Learned counsel contended that in terms of the investigation carried out and the evidence collected by the investigating agency, the prosecutrix had herself called the bail petitioner and came to his place on her own. Allegation of sexual exploitation of the prosecutrix by the bail petitioner is absolutely incorrect. Evidence collected by the investigating agency does not substantiate the allegation. Learned counsel further submitted that the trial is already going on. Considering the fact that petitioner is behind the bars from past about 4 months, he may be enlarged on bail. The petitioner also undertakes not to influence or tamper the prosecution evidence, in case of his enlargement on bail. He will abide by all the terms and conditions of the bail and will not threaten or induce the prosecution witnesses including the complainant and her family members.
Mr. Arvind Sharma, learned Additional Advocate General opposed the bail petition and submitted that the petitioner had committed a heinous offence against a minor child. He further submitted that in case the Court is inclined to grant bail to the petitioner, then stringent conditions may be imposed upon him including one that the petitioner shall not threaten and harass the complainant/prosecutrix and her family members in any manner whatsoever.
4. I have heard learned counsel for the parties and gone through the status report and record produced by the investigating agency.
5. As per status report and the record of the case, prima facie it comes out that it was prosecutrix, who had called the bail petitioner on 13.02.2022. The prosecutrix reached
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