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?
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…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
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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
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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,
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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.
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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.
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