IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 806 of 2017
Decided on July 10, 2017
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Vineet Kumar … Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner : Mr. B.L. Soni, Advocate.
For the respondent :
Mr. M.L. Chauhan, Additional
Advocate General.
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Sandeep Sharma, Judge (oral):
By way of present petition filed under Section 439
CrPC, prayer has been made for grant of bail in FIR No. 165/16
dated 25.10.2016, under Sections 366, 376, 511 and 506 IPC,
registered at Police Station, Baijnath, District Kangra, Himachal
Pradesh. ASI Mohan Singh, PS Baijnath, District Kangra,
Himachal Pradesh has come present with the report. Mr. M.L.
Chauhan, learned Additional Advocate General has placed on
record status report prepared on the basis of record of the
investigating agency.
2. Perusal of status report, suggests that one Shri Lekh
Raj son of Shri Shukru Ram, resident of village Gharnot, post
office Majherna, Tehsil and Police Station, Baijnath, District
Kangra, Himachal Pradesh, telephonically informed the police that
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Whether the reporters of the local papers may be allowed to see the judgment?
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one boy(accused) was apprehended, who made an attempt to
kidnap one girl, who had gone to answer the call of nature, on
25.10.2016. On the basis of aforesaid information, police recorded
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statement of victim/ prosecutrix under Section 154 CrPC, wherein
she stated that she was plus two pass and her father had passed
away five years back. She further stated that she alongwith her
brother, who is handicapped, resides with her uncle, on the
address given in the complaint. As per prosecutrix, when at
around 6.40/6.50 pm on 24.10.2016, she went to her Aunt’s
house to answer call of nature, accused namely Loku gagged her
mouth and took her to an empty house at a distance of 100-150
metres. As per prosecutrix, she requested accused to leave her but
he stated that he will have sexual intercourse with her forcibly. It
also emerges from the status report that accused made an attempt
to commit rape with the prosecutrix forcibly but when she
opposed, she was threatened. In the aforesaid incident,
prosecutrix suffered bruises on her leg. However, prosecutrix was
rescued later on from the clutches of accused by her uncles
namely Rajinder, Lekh Raj and his son Ravi. It also emerges from
the record that the bail-petitioner is in custody since 25.10.2016.
Perusal of aforesaid status report though suggests that an attempt
was made by accused to kidnap prosecutrix but definitely there is
no evidence of overt act, if any, on the part of bail petitioner, from
where it could be inferred that an attempt was made by petitioner
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to commit rape. Apart from above, perusal of medical evidence
adduced on record by prosecution also nowhere indicates towards
commission of offence, if any, by bail petitioner under Section
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376/511 IPC. All the statements recorded by prosecution in
support of prosecution story are of the relatives of prosecutrix.
Besides the statements given by Rajinder, Lekh Raj and Ravi, who
are related to prosecutrix, no evidence is available on record
suggestive of the fact that any person had seen bail petitioner
kidnapping prosecutrix from her Aunt’s house. Similarly, there is
nothing in the statement of the prosecutrix from where it can be
inferred that she was able to raise alarm after having been
kidnapped by bail petitioner and as such it is not understood, how
aforesaid persons namely Lekh Raj, Rajinder, Ravi reached site of
alleged occurrence. Besides this, prosecutrix is a major. Though,
aforesaid aspects of the matter would be examined in detail, by the
trial Court during trial, but this Court, after having carefully
perused statements of prosecutrix as well as other witnesses,
more particularly MLC placed on record sees no reason to keep the
bail petitioner in custody, for indefinite period. This Court also can
not lose sight of the fact that bail petitioner is in custody, since
25.10.2016 i.e. approximately nine months.
3. Otherwise also, normal rule is of bail and not jail.
Apart from above, Court has to keep in mind nature of
accusations, nature of evidence in support thereof, severity of the
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punishment which conviction will entail, character of the accused,
circumstances which are peculiar to the accused involved in that
crime. Petitioner is local resident of District Kangra and he shall
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remain available to face the trial and to undergo imprisonment, if
any, imposed upon him.
4. The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid down
the following principles to be kept in mind, while deciding petition
for bail:
(i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence;
(ii)
nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
5. In view of above, the petition is allowed and the
petitioner is ordered to be enlarged on bail in aforesaid FIR,
subject to furnishing personal bonds in the sum of `20,000 with
one surety in the like amount to the satisfaction of concerned
Chief Judicial Magistrate, with following conditions:
(a) 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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(b) He shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any
manner whatsoever;
(c) He shall not make any inducement, threat or
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promises 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
(d) He shall not leave the territory of India without the
prior permission of the Court.
6. It is clarified that if the petitioner misuses the liberty
or violate any of the conditions imposed upon him, the
investigating agency shall be free to move this Court for
cancellation of the bail.
7. Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and shall
remain confined to the disposal of this application alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma)
Judge
July 10, 2017
(vikrant)
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