Vineet Kumar vs State Of Himachal Pradesh on 10 July, 2017

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

1
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

.

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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