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Cr. Mp(M) No. 1184 Of 2018 vs State Of Himachal Pradesh on 26 September, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr. MP(M) No. 1184 of 2018
Decided on: 26th September, 2018
Arun Kumar ….Petitioner
Versus

.

State of Himachal Pradesh …Respondent

Coram

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?1 Yes.

For the petitioner: Mr. N.S. Chandel, Advocate.

For the respondent/State: Mr. Ashwani Sharma and Mr. P.K.

Bhatti, Additional Advocates General.

HC Ramesh Kumar No. 12, Police
Station Talai, District Bilaspur, H.P.

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. 72 of 2017, dated 29.07.2017,

under Sections 376, 342, 506, 109, 120B IPC read with Section 34

IPC and Sections 4 and 17 of POSCO Act, registered in Police

Station Talai, District Bilaspur, 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 the place and neither in a position

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

from justice, so he be released on bail.

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

27/09/2018 22:58:19 :::HCHP

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

on 29.07.2017, the mother of the prosecutrix lodged a complaint

with the police alleging that her daughter, prosecutrix (name

withheld), who studies in college, as per her daily routine, on

.

29.07.2017 started to college at about 08:00 a.m.. The

complainant has further alleged that in the evening the prosecutrix

was sleeping and on the asking of the complainant, she started

weeping and divulged that she has been sexually assaulted by the

petitioner. The prosecutrix disclosed to her mother that today

when she alongwith her friend, Madhu, was at Barthi Chowk,

uncle of Madhu (petitioner) gave them lift in his Nano car. The

prosecutrix further divulged to the complainant that one lady

alongwith a baby was sitting on the front passanger seat.

However, subsequently that lady came to the rear passanger seat

and the prosecutrix sat on the front passanger seat. The friend of

the prosecutrix alighted at Jhanduta College and when she tried to

alight, the petitioner did not allow her and hurriedly drove the

vehicle towards the house of lady, who was sitting in the vehicle.

Later on, the lady sitting in the car told the prosecutrix to come on

the rear seat and that lady alighted from the vehicle at Kaasru and

on being asked, the prosecutrix accompanied her to her home, as

she wanted to collect some material from her home. The petitioner

also started walking behind them. When the prosecutrix and the

petitioner were inside a room, the lady closed the door of the room

27/09/2018 22:58:19 :::HCHP
and the petitioner, after bolting the door of the room from inside,

forcibly commited sexual intercourse with her and also threatened

her to do away with her life in case she raises any hue and cry.

The petitioner tied her hands with her dupatta and also gagged her

.

mouth. When the prosecutrix shouted, the petitioner increased the

volume of the music system. Later on, when the prosecutrix came

out of the room, that lady was cutting grass nearby. The petitioner

took the prosecutrix to Barthi and there he made her to alight. On

the anvil of the complaint, so made by the complainant, a case was

registered against the petitioner and the investigation ensued. The

prosecutrix was medically examined and as per the medical

opinion sexual intercourse was not ruled out. The petitioner was

arrested and the statements of the witnesses were recorded. Police

prepared the spot map. Statement of the prosecutrix was also

recorded under Section 164 Cr.P.C. The petitioner got recovered a

used condom. As per the final medical opinion, considering

unmarried status torn hymen and well heated tag of hymen

alongwith presence of seminal stain on vaginal slide, recent sexual

intercourse has taken place. As per the prosecution, the challan

stands presented in the Court and the statements of the witnesses

have been recorded. Lastly, the prosecution has prayed that the

bail application be dismissed.

27/09/2018 22:58:19 :::HCHP

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 behind the bars since long and nothing has come

against him in the testimonies of the prosecution witnesses, so he

be released on bail. Conversely, the learned Additional Advocate

General has argued that the petitioner has commited a serious

office and taking into consideration the medical report, which

portrays that the hymen of the prosecutrix was found torn and also

considering the manner in which the petitioner perpetrated the

crime, the bail application be dismissed.

6. At this stage, considering overall aspects of the case,

as emanating from the records, alongwith the fact that the only a

witness remains to be examined by the learned Trial Court,

considering the age of the petitioner as also the prosecutrix and the

manner in which the crime is alleged to have been committed by

the petitioner, this Court finds that present is not a fit case where

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

be exercised in his favour.

7. In view of the above, the petition sans merits, deserves

dismissed and is accordingly dismissed.

(Chander Bhusan Barowalia)
26th September, 2018 Judge
(virender)

27/09/2018 22:58:19 :::HCHP
.

27/09/2018 22:58:19 :::HCHP

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