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Chander Mohan vs State Of Himachal Pradesh on 3 August, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No. 944 of 2018
Decided on : 3.8.2018

.

Chander Mohan …..Petitioner.
Versus

State of Himachal Pradesh ….Respondent.

Coram:
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?1yes

For the petitioner: Mr. R.K. Gautam, Senior Advocate with
Ms. Megha Kapur Gautam, Adv.

For the respondent: Mr. Hemant Vaid, Addl. A.G., for the
respondent-State.

Sureshwar Thakur, J (oral)

The bail applicant/accused, is, suffering judicial

incarceration, for his allegedly committing offence(s),

constituted under Sections 363,366, and, under Section 376 of

the Indian Penal Code, and, in respect thereof, F.I.R. No. 7 of

2018 of 8.2.2018, is, registered with Police Station, Baddi,

District Solan, H.P.

2. The Investigating Officer is present in Court, and,

has placed before this Court, the apt status report. The FIR,

with respect to the alleged offences, is, lodged at the instance,

of one, Shiv Kumar. Even if, assumingly, the prosecutrix was a

1
Whether reporters of the local papers may be allowed to see the judgment?

07/08/2018 23:01:27 :::HCHP

…2…

minor, at the stage of hers’ joining the company of the bail-

.

applicant, and, when prima-facie hence an offence borne under

Section 366, IPC, may be, rather committed by the bail-

applicant, (i) nonetheless, the prima-donna factum, enjoining

ascertainment by this Court, appertains qua whether in

contemporanity, of, the prosecutrix being in the purported

unlawful custody of the bail-applicant, qua thereat, the

accused rather subjecting her to forcible sexual intercourse. In

respect thereof, the learned counsel appearing for the bail-

applicant has fairly placed on record, the statement rendered

on oath by the prosecutrix, before the learned trial Magistrate,

wherein she makes echoing(s) qua the bail-applicant/accused,

on 9.2.2018, rather subjecting her to forcible sexual

intercourse. Given the aforesaid ascriptions qua criminal

inculpability, vis-à-vis, the bail-applicant/accused, thereupon ,

it is also significant to determine whether in contemporanity

thereof,the prosecutrix being a minor, whereupon hence a

befitting conclusion, would emanate, qua the apt penal

ascription(s), rather holding prima-facie veracity. (i) However,

upon material existing on record, making unfoldment(s) qua in

contemporanity, vis-à-vis, 9.2.2018, hers thereat being a major,

(ii) thereupon this Court may be constrained, to, while making

07/08/2018 23:01:27 :::HCHP
…3…

a wholesome reading of her statement, make a conclusion, qua

.

whether hers, meteing an apposite valid consent to the bail-

applicant. iii) whereupon, it is also incumbent upon this Court,

to, also hence obviously make a wholesome reading of her

statement, as, rendered before the learned trial Magistrate,

wherein she makes voicing(s), qua hers, prior thereto, and, upto

9.2.2018, rather visiting various places, in the company, of the

bail-applicant, iii) for reiteratedly hence determining whether

the apt penal ascription(s) made by her qua the bail/applicant,

rather standing belied or not. The birth certificate of the

prosecutrix reveals, that, on 9.2.2018, she had acquired

majority. Consequently, she thereat held, the, apt capacity to

mete a valid consent, vis-à-vis the accused, for the latter

proceeding to hold her to coitus. Furthermore, she has, in her

statement on oath, made before the learned trial Magistrate,

echoed qua hers, not, meteing any consent to the bail-

applicant/accused, for the latter subjecting her to sexual

intercourse, rather the bail-applicant perpetrating forcible

sexual intercourse upon her. The afore-referred statement

rendered on oath by the prosecutrix, before the learned

Judicial Magistrate concerned, cannot, prima-facie, be

imputed any grain of truth, (a) given hers also making

07/08/2018 23:01:27 :::HCHP
…4…

echoing(s) therein qua hers joining the company, of the bail-

.

applicant/accused, on 4.2.2018, and, continuously thereafter

upto 9.2.2018, hers traveling to various places, in his company.

(b) Hence reading the aforesaid echoing(s) in conjunction, with,

hers ascribing penal misdemeanors, vis-à-vis, the bail-

applicant, rather engenders an inference qua, even if

assumingly, the

prosecutrix, during hers, being

purported unlawful company, of the bail-applicant, given hers’
r in the

thereat being a minor ( c) yet with, hers on acquiring majority,

hers’ thereat being subjected to sexual intercourse, by the bail-

applicant/accused, cannot bolster any inference, qua it

holding any overtones, of, coercion, rather with hers, during

her stay with the accused, hence developing intimacy with

him, contrarily fillips an inference qua hers meteing a valid apt

consent, to the bail-applicant, for the latter holding her to

coitus.

3. The Investigating Officer present in Court, has,

stated that after completion of investigation, a report under

Section 173 Cr. P.C. hence stands filed before the committal

Court. Consequently with the apt investigation(s) being

complete, thereupon, this Court does not deem it fit, and,

proper to prolong the judicial custody, of, the bail applicant,

07/08/2018 23:01:27 :::HCHP
…5…

especially when no material has been adduced by the State,

.

with an apt display therein that in the event of the bail-

applicant being released on bail, there is every likelihood of his

fleeing from justice or tampering with the prosecution evidence.

Consequently, thereupon this Court is constrained to accord

the facility of bail to the bail-applicant. In aftermath, the

present bail application is allowed, and, the indulgence of the

bail is granted to the bail applicant, subject to compliance with

the following conditions:

i) That he shall furnish personal bond in the sum of

Rs. 1,00,000/-, with two local sureties, in the like

amount, to the satisfaction of the learned Addl.

Chief Judicial Magistrate, Nalagarh.

ii) That he 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 the Police.

iv) That he shall not leave India without the prior

permission of the Court.

07/08/2018 23:01:27 :::HCHP

…6…

v) That he shall deposit his passports, if any, with the

.

Police Station, concerned.

v) That in case of violation of any of the conditions, the

bail granted to the petitioner shall be forfeited and

he shall be liable to be taken into custody.

3. Any observation made herein above shall not be

taken as an expression of opinion on the merits of the case and

the trial Court shall decide the matter uninfluenced by any

observation made herein above.

Copy dasti.

3rd August, 2018
(kalpana)
(Sureshwar Thakur),
Judge.

07/08/2018 23:01:27 :::HCHP

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