IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MP(M) No. 1173 of 2018
Decided on : 17.9.2018
.
Amar Singh …..Petitioner.
Versus
State of H.P. ….Respondent.
Coram:
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
For the petitioner:
r to
Whether approved for reporting? Yes.
Mr. Sudhir Thakur, Advocate.
For the respondent: Mr. Hemant Vaid, Addl. A.G.
with Mr. Y.S. Thakur, Dy. A.G., for
the respondent.
Sureshwar Thakur, J (oral)
The instant petition, has been filed by applicant/
accused, under Section 439, Code of Criminal Procedure, for
seeking, an order, for his being released from judicial custody,
whereat he is extantly lodged, for, his allegedly committing an
offence, punishable under Sections 376, 342 of the Indian
Penal Code, in respect whereof, an FIR No. 144 of 2018, of,
24.5.2018, is, registered with Police Station, Sadar Solan,
District Solan, H.P.
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2. The accused is suffering judicial incarceration, for,
.
four months. The prosecutrix/victim is a married lady, and,
has two minor children. She is deaf and dumb. However, the
apt status report discloses qua hers not lacking, the, capacity
hence for making an apt communication to her husband or to
other members of her matrimonial home. Contrarily, it is
manifest, from, a perusal of the status report, that, she could
make communications, through, gestures and by using sign
language, and, there is also disclosure therein, that, her apt
communications, through, gestures and sign language, were
understandable by the members, of, her matrimonial home.
The effect of the aforesaid, is, that the prosecutrix rather
cannot be construed, to, lack the capacity to mete consent, if
any, visavis perpetration, of, sexual intercourse upon her, by
the bail applicant/accused. If so, she was enjoined, to,
promptly report the incident, to, the police. However, the apt
status report discloses qua about 21 days rather elapsing, since
the occurrence, upto hers’ making apt communications, to her
motherinlaw. Even though she in her statement recorded,
under, Section 164 Cr.P.C. she makes echoings, qua, her
within two days, since the occurrence rather reporting the
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incident to her motherinlaw, yet, the afore contradictions
.
rather constrains this Court, to conclude, that, there is a
manifest delay, in, the reporting, of, the incident to the police.
Neither the motherinlaw of the prosecutrix nor the latter has
meted any tangible explications qua the apt delay. The effect
thereof is (i) qua hence the emergence of apt medical evidence
being precluded, (b) nor hence evidence is forthcoming qua
bruises, and, abrasions rather occurring on the person of the
bail applicant/accused or upon the person of the prosecutrix/
victim, with, any vivid display qua whether prosecutrix had or
not resisted, the, sexual intercourses perpetrated upon her, by
the bailapplicant/accused, (ii) thereupon at this stage, it
cannot be firmly concluded qua the sexual intercourse, which
occurred interse the bail applicant/accused, and, the
prosecutrix being construable to be a forcible sexual
intercourse. Corollary thereof is hence, the apt benefit at this
stage, is visitable, upon, the bail applicant/ accused qua his
rather with the consent of the prosecutrix, hence sexually
accessing the victim.
3. Be that as it may, the prosecutrix, at, the end of her
statement, recorded under Section 164 Cr.P.C., has, made
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acquiescences qua her forgiving, the, misdemeanor of the
.
accused, acquiescences whereof , is, rather tentatively and
prima facie may be readable qua hers consenting, visavis, the
bail applicant hence sexually accessing her.
4. Bearing in mind the aforesaid factum, this Court
deems it fit and appropriate, importantly, when the
Investigating Officer has reported that the bail petitioner, has
throughout associated, hence, in the relevant investigation, to,
hence afford, the facility of bail in favour of the bail
applicant/petitioner. Moreso, when at this stage, no evidence
has been adduced by the prosecution, demonstrating, that in
the event of bail being granted to the bail applicant/petitioner,
there being every likelihood of his fleeing from justice or
tampering with prosecution evidence, Accordingly, the
indulgence of bail, is, granted to the bail applicant/petitioner,
on, the following conditions:
i) That he shall join the investigation, as and when
required by the Investigating agency;
ii) 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
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dissuade him from disclosing such facts to the Court
.
or to the Police;
iii) That he shall not leave India without the previous
permission of the Court;
iv) That he shall deposit his passport, 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;
5. In view of above, petition stand disposed of. 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.
Dasti Copy.
17th September, 2018 (Sureshwar Thakur),
(kck) Judge.
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