IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MP(M) No. 705 of 2018.
.
Reserved on: 6th July, 2018.
Date of Decision : 13th July, 2018.
Roop Dutt Sharma …..Petitioner.
Versus
State of H.P.
Coram
r to
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
…..Respondent.
Whether approved for reporting? Yes.
For the Petitioner: Mr. R.K. Gautam, Sr. Advocate
with Ms. Megha Kapur Gautam,
Advocate.
For the Respondent: Mr. Hemant Vaid, Addl. A.G.
with Mr. Y.S. Thakur and Mr.
Vikrant Chandel, Dy. Advocates
General.
__
Sureshwar Thakur, Judge (Oral)
The bail applicant, is, suffering judicial
incarceration, for, his allegedly committing offences
constituted under Sections 363, 366, and, Section 376 of
the IPC, and, for his allegedly committing offences,
embodied in Sections 4, 7 and 16 of the POCSO Act, in
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respect whereo, FIR No. 7 of 2018 of 8.02.2018, is lodged
with Women Police Station, Baddi.
.
2. The prosecutrix, has, solemnised marriage with
the bail applicant, and, in her sworn affidavit, she has
made a disclosure qua hers, at the relevant time, being a
major. The marriage certificate, qua the solemnisation, of,
marriage inter se the bail applicant, and, the prosecutrix
time, being, a, major.
r to
also elborates therein qua the prosecutrix, at the relevant
However, in case, the aforesaid
material is imputed sanctity, thereupon, the offences
allegedly committed by the bail application, would prima
facie, be hence construable to be with the consent of the
prosecutrix, (I) dehors, in her statement, recorded, under
Section 164 of the Cr.P.C., before the learned Judicial
Magistrate concerned, she ascribes, vis-a-vis, the bail
applicant, an, incriminatory role, qua his, on, 8.02.2018,
subjecting her, to, forcible sexual intercourse.
3. However, before proceeding to mete credence,
to the aforesaid disclosures, unfolded, in the affidavit
sworn, by the prosecutrix, and, in the apt marriage
certificate, (a) it is necessary, to, bear in mind, the further
factum of the MLC, appertaining, to the prosecutrix,
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contrarily unfolding therein, qua the prosecutrix being
aged 15 years, and, also the school leaving certificate,
.
appertaining to the prosecution, also, alike therewith
unraveling, qua the prosecutrix, at the relevant time,
being a minor.
4. In summa, the comparative worth, of, the
aforesaid material, is, enjoined to be determined. In the
apt MLC, though the prosecutrix, is, delineated therein, to
be, at the relevant time, hence a minor, yet for the
aforesaid reflections, to, carry vigour, (a) it stood enjoined,
upon, the doctor concerned, to ensure hers appending, her
signatures or thumb impression thereon, (b) whereas, with
the apt MLC, neither carring the signatures of the
prosecutrix, nor with her thumb impressions, standing
embossed thereon. (c) Contrarily, with, the thumb
impression(s) of her mother, standing, embossed thereon,
(d) thereupon, it is to be invincibly, concluded, qua the
delineations borne therein, qua the prosecutrix, at the
relevant time, being a minor, not, prima facie, carrying any
solemnity or gravity. More so, when the mother, of, the
prosecutrix has therein revealed, her willingness, for her
minor daughter undergoing, a, radiological test, for, her
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radiological age hence being determined. (i) Willingness
whereof, would not, emanates unless, she is unsure about
.
the exact date of birth of her daughter. Furthermore,
though, the school leaving certificate also unravels qua
the prosecutrix, at the relevant time, being a minor, yet,
thereupon, too, no prima facie sanctity, is to be imputed,
(a) given, the Investigating Officer, not, collecting from the
quarters concerned, the, birth certificate of the minor
prosecutrix, whereas, the birth certificate, alone, given its
solitarily comprising the best evidence qua the relevant
fact, would hence constrain this Court to mete
authenticity, vis-a-vis, the reflections qua the date, of,
birth of the prosecutrix, as borne, in her school leaving
certificate. Contrarily, want of existence, on, record of the
birth certificate of the prosecutrix, as, maintained with the
offices concerned, does prima facie, bely her age, as,
borne in the apt school leaving certificate, rather, the,
reflections borne in the school leaving certificate qua the
prosecutrix, at the relevant time, being a minor, are, to be
construed to be sumisally and conjecturely made,
whereupon, hence no reliance can be imputed.
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5. Consequently, lack of firm, and, apposite best
documentary material on record, displaying, qua the
.
prosecutrix, at the relevant time, being a minor, rather
when the mother of the prosecutrix, has evinced in the
apposite MLC, hence her willingness, qua, the prosecutrix
undergoing, the, radiological test, (i) hence, rears a
formidable conclusion qua an aura of uncertainty, hence,
existing, even in the mind of the mother, of, the
prosecutrix, vis-a-vis, the exact date of birth, of, the
prosecutrix, (ii) whereupon, it is to be concluded qua the
prosecutrix being, a major, at the relevant time. In
aftermath, even if, she in her statement recorded, under
Section 164 of the Cr.P.C., hence attributes an
incriminatory role, vis-a-vis, the bail applicant, yet with
hers thereafter, solemnising, a, valid marriage, with the
accused, thereupon, it is to be concluded, that, the
aforesaid ascribed penal misdemeanors, prima facie, at
this stage, hence fading into insignificance. Moreover,
with the State not bringing on record, any material
displaying that in the event of bail applicant being
released on bail, there is any likelihood of his fleeing from
justice or tampering with the prosecution evidence, further
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constrains this Court to accord the facility of bail to the
bail applicant. Consequently, the present bail application is
.
allowed and the indulgence of bail is granted to the bail
applicant subject to compliance of the following
conditions:-
(i) that the bail applicant shall furnish personal
bond in the sum of Rs.50,000/- with two local
sureties in the like amount to the satisfaction of
the learned Addl. Chief Judicial Magistrate,
Nalagarh
(ii) that the bail applicant shall join the
investigation, as and when required by the
Investigating Agency;
(iii) that he shall 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 from disclosing such facts to the
Court or to any police officer;
(iv) that he shall not leave India without the prior
permission of the Court ;
(v) that he shall deposit his passport(s), if any, with
the SHO, Police Station concerned;
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6. With the aforesaid observations the present
.
petition stand disposed of. It is, however, made clear that
the findings recorded hereinabove shall have no bearings
on the merits of the case.
Dasti Copy.
(Sureshwar Thakur)
13 th
July, 2018 Judge.
(jai) r
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