IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1019 of 2018
Decided on: 29th August, 2018
Sunny 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. Dalip K. Sharma, Advocate.
For the respondent/State: Mr. Ashwani Sharma and Mr. P.K.
Bhatti, Additional Advocates General.
_
Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been moved by the
petitioner under Section 439 of the Code of Criminal Procedure seeking
his release in case FIR No. 56 of 2015, dated 02.06.2015, under
Section 376 IPC and Section 4 of POCSO Act, Police Station
Kandaghat, District Solan, H.P.
2. As per the averments made in the petition, the petitioner is
innocent and has been falsely implicated in the present case. He is
resident of District Shimla 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 story, on
02.06.2015 the prosecutrix (name withheld) made a statement before
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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the police, wherein she stated that she is a student of 9th class and she
met the petitioner in a marriage ceremony. Thereafter, she used to talk
with the petitioner on telephone. The prosecutrix has further stated
.
that on 30.05.2015 there was jaagran (a religious function) in her
house and the petitioner came there. At about 12:00 mid night, she
went to attend the call of nature and the petitioner followed him. The
petitioner took her to nearby Community Centre Building, where they
initially talked for 10-15 minutes, but, later on, the petitioner forcibly
committed sexually intercourse with her. Subsequently, the
prosecutrix came to her home and due to fear she did not divulge this
fact to anyone. On the subsequent morning, the prosecutrix narrated
the incident to her mother and the police was informed. On the anvil
of the statement of the prosecutrix, a case was registered and
investigation ensued. Police prepared the spot map and the statements
of the witnesses were recorded. The prosecutrix was medically
examined and record qua date of birth of the prosecutrix was procured.
The petitioner was also medically examined. The statement of the
prosecutrix was also got recorded under Section 164 Cr.P.C. The
petitioner, through his disclosure statement, got recovered a condom.
As per the medical examination, possibility of sexual intercourse can
not be ruled out. The investigation revealed that at the time of
occurrence, the prosecutrix was fourteen years and four months of age.
As per the prosecution, the challan stands presented in the Court.
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Lastly, the prosecution has prayed that the bail application be
dismissed.
4. I have heard the learned Counsel for the petitioner, learned
.
Additional Advocate General for the State and gone through the record,
including the police report, carefully.
5. The learned Counsel for the petitioner has argued that the
petitioner is innocent and has been falsely implicated in the case in
hand. The petitioner 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 Shimla District and he
cannot be kept behind the bars for an unlimited period. Conversely,
the learned Additional Advocate General has argued the petitioner has
committed a serious offence and in case he is enlarged on bail he may
flee from justice any may also tamper with the prosecution evidence. It
is prayed that the bail application of the petitioner may be dismissed.
6. At this stage, considering the age of the petitioner, the fact
that he is behind the bars for the last three years, he is resident of
District Shimla and neither in a position to tamper with the
prosecution evidence, nor in a position to flee from justice and also
considering the manner in which the crime is alleged to have been
perpetrated and also considering the material, which is emanating from
the records and without discussing the same, this Court finds that the
present is a fit case where the judicial discretion to admit the petitioner
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on bail is required to be exercised in his favour. Therefore, it is ordered
that the petitioner be released forthwith on bail, on his furnishing
personal bond to the tune of `50,000/- (rupees fifty thousand only)
.
with one surety in the like amount to the satisfaction of the learned
Trial Court, in case FIR No. 56 of 2015, dated 02.06.2015, under
Section 376 IPC and Section 4 of POCSO Act, Police Station
Kandaghat, District Solan, H.P. The bail is granted subject to the
following conditions:
(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 suchfacts to the Investigating Officer or Court.
7. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
29th August, 2018 Judge
(virender)
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