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Balwinder Singh vs State Of Himachal Pradesh on 7 January, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.M.P (M) No. 1816 of 2018

Date of decision: 7.1.2019

.

Balwinder Singh. …Petitioner
Versus
State of Himachal Pradesh. …Respondent

Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1

For the Petitioner: Mr.N.K. Thakur, Senior Advocate with Mr.Karan
Vir Singh Advocate.

For the Respondent: Mr.Shiv Pal Manhans, Additional Advocate
General, with Mr.R.P. Singh and Mr.Raju Ram
r Rahi, Deputy Advocate Generals.

SI Arjun Dev, Police Station Amb, District Una,
H.P. present in person along with record.

Vivek Singh Thakur, Judge (oral)

Present petition has been filed seeking regular bail under

Section 439 Cr.P.C. in case FIR No. 4 of 2018, dated 4.1.2018 under

Sections 376-D, 313, 506 and 34 of Indian Penal Code (in short ‘IPC’),

registered at Police Station, Amb, District Una, H.P.

2. Status report stands filed. Record has also been produced.

3. Petitioner is in custody since 28.6.2018 in pursuance to the

complaint lodged by victim alleging her violation by one Parminder Singh,

Sarpanch, on the pretext of adopting her son, as she, after having matrimonial

dispute with her husband Daljinderjot Singh, was living separately along with

her son. It is further case of prosecutrix that in the month of September,

2017, she was asked by said Parminder Singh to accompany him to Baba

Barbhag Singh without her son, as they had to walk a long distance and

accordingly she accompanied him and at that time he was accompanied by

his two friends, one of which was the petitioner Balwinder Singh. According to

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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2 Cr.M.P (M) No. 1816 of 2018

her before reaching Baba Barbhag Singh, they stayed in hotel Nardev in two

rooms and in one room she and Parminder Singh had checked in and during

evening she was made to consume liquor along with these three persons and

.

according to her some intoxicant was mixed in the liquor, as a result of which

she lost her consciousness and all of these three companions violated her

during night and she came to know about it when, after gaining senses, she

found herself naked on a double bed along with these three naked persons

and she also noticed injuries on her private parts and breasts etc. and when

she intended to make a complaint, they threatened to kill her and her child as

well as her mother, who were residing at Sangroor and as there was no male

member to protect them, she could not make the complaint. However, in

November, 2017, she found herself pregnant and on disclosure of this fact,

Parminder Singh had forced her for abortion by administering some medicine

but there was partial miscarriage, resulting into surgical abortion on

23.11.2017 on the advice of doctor. According to complainant, she was

continuously being threatened by Parminder Singh, who had started avoiding

her phone calls, therefore, she found herself totally insecure in Sangroor, but

after gathering some courage with the help of certain friends, she lodged a

complaint on 4.1.2018.

4. Parmidner Singh and Balbir Singh co-accused are still

absconding and are not traceable, despite issuance of non bailable warrants

against them.

5. The investigation against the petitioner is complete and challan

has been presented in the Court and next date of hearing is fixed for

15.1.2019 before learned Additional Sessions Judge-I, Una.

6. Petitioner has also placed on record, FIR No. 76 dated 9.3.2016,

registered in Police Station, City Sangroor and FIR No. 59 dated 7.6.2018

registered in Police Station Longowal, District Sangroor, wherein complainant,

09/01/2019 23:03:55 :::HCHP
3 Cr.M.P (M) No. 1816 of 2018

therein, had alleged the involvement of present complainant (prosecutrix) and

her mother along with others in commission of offence under Section 376 IPC

in first case and commission of offence under Sections 494, 495, 496, 506,

.

420 and 120-B IPC. in the second FIR.

7. Without going into the correctness of these FIRs lodged against

the complainant herein, I would like to observe that even in case of a woman

of easy virtue, consent for violating her person cannot be taken as granted.

Each and every incident is to be evaluated on the basis of peculiar evidence

of that case and therefore, registration of cases against complainant cannot

be a sole ground for enlarging a person alleged to have committed offence

against the complainant subsequent to or prior to lodging of FIRs against the

complainant.

8. Petitioner had also filed a bail application before learned

Additional Sessions Judge-II Una, which was rejected mainly on the ground

that bail application under Section 438 Cr.P.C. filed by applicant/co-accused

Parminder Singh had already been dismissed by the said Court.

9. Main allegations of the complainant is against Parminder Singh,

who is still absconding and the role of petitioner in the entire episode of

alluring, misrepresenting and exploiting the complainant is entirely different

than that of Parminder Singh, but main accused Parminder Singh, after

dismissal of his anticipatory bail by Additional Sessions Judge-II, is still

absconding along with co-accused Balbir.

10. Learned Deputy Advocate General submits that petitioner

belongs to a place out of the State, however, learned counsel for the

petitioner has submitted that the petitioner is ready to furnish local surety and

to abide by any conditions imposed by this Court.

11. Keeping in view the entire facts and circumstances placed

before me by the petitioner as well as prosecution, coupled with the fact that

09/01/2019 23:03:55 :::HCHP
4 Cr.M.P (M) No. 1816 of 2018

the challan against the petitioner has been presented and there is no other

allegation except the involvement of the petitioner in any other incident except

present one occurred in September, 2017, the petitioner is ordered to be

.

released on bail, on his furnishing personal bond in the sum of `50,000/- with

one local surety, as proposed by learned counsel for the petitioner, in the like

amount to the satisfaction of learned trial Court, subject to the following

conditions:-

(i) That the petitioner shall make himself available to the
police or any other Investigating Agency or Court in the
present case as and when required;

(ii) that the petitioner 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 Court or to any police officer or
tamper with the evidence. He shall not, in any manner, try
to overawe or influence or intimidate the prosecution

witnesses;

(iii) that he shall not obstruct the smooth progress of the
investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the

offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any

manner;

(vi) that the petitioner shall not jump over the bail;

(v) that he shall not leave the territory of India without prior
information. He shall furnish his temporary and permanent
address along with Mobile Number/contact telephone number(s)
to the Investigating Officer and shall keep informing change in
address/Mobile Number/telephone numbers, if any, to the
concerned Police Station regularly, during the pendency of the
trial.

12. It will be open to the prosecution to apply for imposing and/or to

the trial Court to impose any other condition on the petitioner as deemed

necessary in the facts and circumstances of the case and in the interest of

justice.

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5 Cr.M.P (M) No. 1816 of 2018

13. In case the petitioner violate any conditions imposed upon him,

his bail shall be liable to be cancelled. In such eventuality, prosecution may

approach the competent Court of law for cancellation of bail, in accordance

.

with law.

14. Learned trial Court is directed to comply with the directions issued

by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-

IV.7139 dated 18.03.2013.

15. Observations made in this petition hereinbefore shall not affect

the merits of the case in any manner and are strictly confined for the disposal

of the bail application.

16. Petition stands disposed of in the aforesaid terms.

Copy Dasti.

(Vivek Singh Thakur),
th
7 January, 2019 Judge.
(KRS)

09/01/2019 23:03:55 :::HCHP

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