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Cr.Mp(M) No. 104 Of 2018 vs State Of Himachal Pradesh on 28 February, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 104 of 2018
Decided on: 28th February, 2018
Abishek Thakur ….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. Satpal Chauhan and Mr.
Dharamender Verma, Advocates.

For the respondent/State: Mr. Ashwani Sharma, Addl. AG, with Mr.
Kamal Kant Chandel, Dy. AG and Mr.
Rajat Chauhan, Law Officer.

ASI Yoginder Singh, Police Station
r Nirmand, District Kullu, H.P.

_

Chander Bhusan Barowalia, Judge. (oral).

The present bail application has been maintained by the

petitioner under Section 439 of the Code of Criminal Procedure seeking

his release in case FIR No. 45 of 2017, dated 17.08.2017, under

Section 376 IPC and Section 4 of POCSO Act, registered at Police

Station Nirmand, District Kullu, 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

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.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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3. Police report stands filed. As per the prosecution story, on

24.07.2017 the prosecutrix made a complaint to the police, wherein

she has alleged that she is student of 10+1 in GSSS ARSU. On

.

22.07.2016 she was home with her grand-father and grand-mother.

The prosecutrix has further averred that about 01:00 p.m. the

petitioner telephoned her and said that he is coming to meet her. At

about 08:00 p.m. the prosecutrix went to meet the petitioner. The

petitioner gagged the mouth of the prosecutrix and forcibly committed

sexual intercourse with her. In the night, the petitioner kept the

prosecutrix in the shed of Pritam Singh and in the morning he said

that in the evening he will come to marry her, but he did not turn up.

Thereafter, the prosecutrix came to her home and narrated the entire

incident. On the basis of the complaint, the police machinery was set

into motion, a case was registered against the petitioner and the

investigation ensued. The prosecutrix was medically examined and it

was opined that the prosecutrix may have undergone sexual

intercourse within the probable duration of more than a week. Police

prepared the spot map and the statements of the witnesses were

recorded. Statement of the prosecutrix was also recorded. Scientific

evidence was preserved and sent for chemical analysis to RFSL, Mandi,

and as per the final medical opinion, the prosecutrix may have

undergone sexual intercourse. The challan stands presented in the

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Court. Lastly, the prosecution has prayed that the bail application

may 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 have argued that the

petitioner is innocent and he is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice. He has

further argued that no fruitful purpose will be served by keeping him

behind the bars for an unlimited period.

r Conversely, the learned

Additional Advocate General has argued that taking into consideration

the age of the prosecutrix, the way the offence was committed and the

seriousness of the offence, the application of the petitioner may be

dismissed.

6. In rebuttal the learned counsel for the petitioner have

argued that the petitioner cannot be kept behind the bars for an

unlimited period. He has further argued that the petitioner is neither

in a position to tamper with the prosecution evidence nor in a position

to flee from justice, so he may be enlarged on bail, as he is only 24

years old.

7. At this stage taking into considering the fact that the

petitioner is behind the bars for approximately six months and also

taking into consideration other aspects, which have come on record,

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viz., age of the petitioner and also the fact that the petitioner is neither

in a position to tamper with the prosecution evidence nor in a position

to flee from justice, this Court finds that the present is a fit case where

.

the judicial discretion to admit the petitioner on bail is required to be

exercised in his favour. Accordingly, the petition is allowed and it is

ordered that the petitioner, who has been arrested by the police of

Police Station Nirmand, District Kullu, H.P., in connection with FIR No.

45 of 2017, dated 24.07.2017, under Sections 376 IPC and Section 4 of

POCSO Act, registered at Police Station Nirmand, District Kullu, H.P.,

he shall be released on bail forthwith in this case, subject to his

furnishing personal bond in the sum of `25,000/- (rupees twenty five

thousand) with one surety in the like amount to the satisfaction of

learned Trial Court. 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 such facts to the Investigating
Officer or Court.

8. In view of the above, the petition is disposed of.

Copy dasti.

(Chander Bhusan Barowalia)
28th February, 2018 Judge
(virender)

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