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.
01/03/2018 22:57:50 :::HCHP
2
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
01/03/2018 22:57:50 :::HCHP
3
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,
01/03/2018 22:57:50 :::HCHP
4
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/herfrom 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)
01/03/2018 22:57:50 :::HCHP
5
.
01/03/2018 22:57:50 :::HCHP
