Vijay Kumar vs State Of Himachal Pradesh on 22 May, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MPM No. 488 of 2017.
Decided on: 22.5.2017.

.
Vijay Kumar …Petitioner.

Versus

State of Himachal Pradesh … Respondent.
…………………………………………………………………………

Coram

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.

For the petitioner. : Mr. N.S. Chandel, Advocate.

For the respondent. : Mr. Vikram Thakur, Dy. Advocate
General with Ashok Kumar ASI, PS.
Bassi.

Ajay Mohan Goel, J (Oral)

Mr. Ashok Kumar, Assistant Sub Inspector, Police Post,

Bassi, Tehsil Joginder Nagar has produced the records of the case. I

have heard learned counsel for the parties and have also gone through

the records of the case.

2. By way of this petition filed under Section 439 of the

Code of Criminal Procedure, the petitioner has prayed for grant of

regular bail in connection with FIR No. 177 of 2015 registered at

1
Whether reporters of the local papers may be allowed to see the judgment?

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Police Station, Joginder Nagar, District Mandi under Section 376 of

Indian Penal Code and Section 4 of Protection of Child from Sexual

.

Offence Act. According to learned counsel for the petitioner, the

petitioner was taken into police custody since 9/10.11.2015. A perusal

of the contents of FIR demonstrates that the case registered against

present petitioner is that petitioner had sexually molested the victim,

who happened to be a minor and was also in close relation to the

petitioner and who later on gave birth to a female child whose father

was the present petitioner as per the victim. The petitioner had earlier

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also filed a regular bail application before the learned Sessions Judge,

Mandi, but the same was withdrawn by him.

3. Mr. Chandel learned counsel for the petitioner submitted

that though the allegations alleged against the petitioner are to the

effect that he has committed offence punishable under Section 376 of

IPC and Section 4 of the Protection of Child from Sexual Offences,

however, the victim whose statement stood recorded before learned

trial court on 11.7.2016 has denied her having been sexually molested

by the petitioner or that she was a minor as on the date when the

alleged incident taken place.

4. I have perused the statement of victim which has been

recorded in the Court on 11.7.2016 and perusal of the same

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demonstrates that in this statement the victim has stated that accused

had not committed rape with her and in fact accused who was her

.

brother-in-law used to visit her house and they had developed physical

relations with each other. A perusal of the statement of the victim

further demonstrates that she has mentioned therein that her date of

birth was 12.1.1997. In her cross-examination by the defence she has

admitted that her date of birth was 12.1.1997. Learned counsel for the

petitioner has also drawn the attention of this Court to the statement of

one Desh Raj, Panchayat Secretary, Gram Panchayat Bhararu who has

been examined in the Court as PW3 and has placed on record

certificate Ext. PW3/B which purportedly is the document which

demonstrates that the date of birth of the victim is 12.1.1998.

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However, in his cross-examination he has admitted the suggestion that

the name of the father of victim is Brahamu whereas the name of the

person whose date of birth was reflected in certificate Ext. PW3/B

was Brahama Nand.

5. Prima facie keeping in view the statement of the

prosecutrix, to the effect that her date of birth is 12.1.1997 and further

that there was a consensual physical relationship between her and the

petitioner, apparently the prosecutrix was a major even as on nine

months prior to the date of birth of the child whose date of birth is

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30.10.2015. In these circumstances, in my considered view, it is a fit

case where the petitioner can be released on bail. Even otherwise it is

.

for the prosecution to prove the guilt of the accused and in case the

prosecution is able to establish before learned trial court the guilt of

the accused, he shall face the consequences. However, at this stage, in

my considered view petitioner has been able to make out a prima facie

case for his enlargement on bail. Accordingly, this petition is allowed

and the petitioner is ordered to be enlarged on bail, on his furnishing

personal bond to the tune of Rs. 50,000/- with one surety in the like

amount to the satisfaction of learned trial court, subject to the

following conditions:-

i) He shall make himself 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;

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ii) He shall not tamper with the prosecution evidence nor hamper

the investigation of the case in any manner whatsoever;

iii) He shall not make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to the Court or the Police
Officer; and

iv) He shall not leave the territory of India without prior permission
of the Court.

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6. It is clarified that the observations made by this Court in

this order are only for the purpose of adjudicating upon the present

.

bail petition and the learned trial court shall not be influenced by any

of these observations while deciding the case on merits, in the course

of trial. It shall be open for the prosecution to move this Court for

cancellation of the bail in case petitioner abuses the bail which has

been granted in his favour.

Copy dasti.

(Ajay Mohan Goel)
r Judge

22nd May, 2017
(Guleria)

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