Akash Sharma vs State Of Himachal Pradesh on 27 November, 2017

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 1393 of 2017
Decided on: 27th November, 2017

.

Akash Sharma ….Petitioner.

Versus
State of Himachal Pradesh. …Respondent.

Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. Bhupinder Ahuja, Advocate.

For the respondent: Mr. Pushpinder Jaswal, Dy. AG,
with Mr. Rajat Chauhan, Law
Officer.

ASI Chaman Lal, Police Station
r Ghumarsin, District Bilaspur, H.P.

__
Chander Bhusan Barowalia, Judge (oral).

The present bail application has been maintained by

the petitioner under Section 439 of the Code of Criminal Procedure

seeking his release in case FIR No. 141 of 2017, dated 06.07.2017,

under Sections 376, 354, 455 506 IPC, Section 4 of POCSO Act

and Section 3(2)(v) of SCST Act, registered at Police Station

Bilaspur, District Bilaspur, H.P.

2. As per the petitioner, he is innocent and has been

falsely implicated in the present case. He is resident of the place

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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and neither in a position to tamper with the prosecution evidence

nor in a position to flee from justice, so he may be released on bail.

3. Police report stands filed. As per the prosecution, the

.

prosecutrix made a complaint to the police alleging therein that

she bought a SIM having mobile number 93181-75320 from the

shop of the petitioner about one and half years back. Thereafter,

the petitioner started calling the prosecutrix and he also messaged

her. The prosecutrix has further alleged in her complaint that the

petitioner used to call from mobile numbers 70181-89133 and

82689-4466 and also with different numbers.

r The prosecutrix

came under the influence of the petitioner and started talking to

him. Thereafter, on a day, when she was alone in the home the

petitioner came and sexually assaulted her. As per the

prosecutrix, subsequently, she was sexually assaulted many times,

but due to fear she did not disclose to anyone. On 28.06.2017 at

about 10:45 p.m., when she went outside to attend the call of

nature, the petitioner came and forced her not to bolt the door

from inside. The petitioner was inebriated and he pushed the door

due to which the prosecutrix fell down on the bed. The petitioner

also used force on the prosecutrix and when bhabhi of the

prosecutrix awoke, the petitioner fled away. On the basis of the

complaint, so made by the prosecutrix, police machinery was set

into motion and a case was registered against the petitioner. The

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spot was photographed and spot map was also prepared. The

prosecutrix was medically examined, however, the doctor has

finally opined that according to history of clinical examination

.

RFSL report, there are no signs suggestive of recent forceful sexual

contract and the sexual assault was not ruled out. The

prosecutrix belongs to schedule caste. The police investigation

revealed that she was born on 11.10.1999. The statements of the

prosecutrix and other witnesses were recorded. The police

procured CDRs of 93181-75320, 70181-89133 and 82639-4466

and forensic analysis of the same are yet to be received. As per the

prosecution, on 03.10.2017 challan was presented in the Court

and after receipt of FSL report, supplementary challan will be filed

in the Court. Lastly, it has been prayed that in case the petitioner

is enlarged on bail, he may tamper with the prosecution evidence

and may also flee from justice. As the petitioner has committed

serious crime, he may not be enlarged on bail and the application

may be dismissed.

4. Heard. The learned counsel for the petitioner has

argued that the petitioner is innocent and he is neither in a

position to tamper with the prosecution evidence nor in a position

to flee from justice. He has further argued that the petitioner is

resident of the place. Conversely, the learned Deputy Advocate

General, has argued that taking into consideration the fact that the

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petitioner has committed a serious offence and in case he is

enlarged on bail he may tamper with the prosecution evidence, so

the bail application of the petitioner, may be dismissed.

.

5. I have gone through the rival contentions of the parties

and the police report in detail.

6. At this stage taking into consideration the facts that

the petitioner is resident of the place and he is neither in a position

to tamper with the prosecution evidence nor in a position to flee

from justice and also the fact that challan stands presented in the

Court and no fruitful purpose will be served by keeping in

petitioner behind the bars for an unlimited period, this Court finds

that the present is a fit case where the judicial discretion to admit

the petitioner on bail is required to be exercised in his favour.

Accordingly, the present petition is allowed and it is ordered that

the petitioner, who has been arrested by the police of Police Station

Ghumarwin, District Bilaspur, H.P., in case FIR No. 141 of 2017,

dated 06.07.2017, under Sections 376, 354, 455 506 IPC,

Section 4 of POCSO Act and Section 3(2)(v) of SCST Act, he shall

be released on bail forthwith in this case, subject to his furnishing

personal bond in the sum of `25,000/- (rupees twenty five

thousand) with one surety in the like amount to the satisfaction of

learned Trial Court. The bail is granted subject to the following

conditions:

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(i) That the petitioner will appear before the
learned Trial Court as and when required.

(ii) That the petitioner will not leave India
without prior permission of the Court.

.

(iii) That the petitioner will not directly or

indirectly 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

Investigating Officer or Court.

7. In view of the above, the petition is disposed of.

Copy dasti.

27th November, 2017
(virender)
r to (Chander Bhusan Barowalia)
Judge

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