IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M) Nos. 1099 of 2018
Date of decision: 31.08.2018
.
Kapil Dev @ Rajinder Singh …… Petitioner
Vs.
State of Himachal Pradesh ….. Respondent
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
For the petitioner
For the respondent
r :
:
Whether approved for reporting?1 No.
Mr. Ashok K. Tyagi, Advocate.
Mr. Vinod Thakur, Addl. A.G. with Mr.
Bhupinder Thakur, Dy. A.G.
Sub Inspector Surinder Sharma, P.S.
Janjehali, Mandi.
Justice Tarlok Singh Chauhan, Judge (Oral)
The petitioner has sought bail in case FIR No. 42 of
2018, dated 09.06.2018, registered at Police Station Janjahli,
District Mandi, H.P. under Sections 363, 366, 376, 120-B of the
Indian Penal Code, Section 4 of the POSCO Act and Section
3(1)W(1)(2) of the SC/ST Act.
2. The respondent has produced the record of the
investigation and has also filed the status report.
3. Undoubtedly, the petitioner is accused of having
committed a serious and heinous offence, however, the records of
this case speak otherwise.
1
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4. The allegations against the bail-petitioner are that on
08.06.2018, at about 7:30 p.m. he (bail-petitioner) made a
telephonic call to the victim and met her at about 4:30 p.m.
.
outside her school. Upon inducing, victim accompanied the bail-
petitioner in a vehicle to his house at Malangan, Tehsil Jhanduta,
District Bilaspur. The vehicle was driven by co-accused. When the
victim went missing, her father informed the police, which led to
the recovery of the victim on the next day from the house of the
bail-petitioner at village Malangan, Tehsil Jhanduta, District
Bilaspur and from where the victim was taken to police station
Janjehali. The statement of victim under Section 154 Cr.PC. was
recorded, on the basis of which, the FIR came to be lodged.
5. Later on, the victim got recorded her statement under
Section 164 Cr.P.C. and admittedly did not support any of the
allegations for which the bail-petitioner has been charged.
6. Adverting to the statement of the victim recorded
under Section 164 Cr.P.C., nowhere in her entire statement,
except in last line, the victim has leveled any allegation against
the petitioner.
7. The perusal of the statement makes it evident to even
a naked eye that the last line has been incorporated much after
the statement of the prosecutrix had already been recorded. The
reason for it is simple, as in the earlier part of the statement,
there was no allegation of any kind against the petitioner,
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however in the last line, it is alleged that the petitioner on
Saturday morning had ravished her. However, just within few
hours after making of the statement, when the victim is brought
.
for medical examination, she clearly states that she was neither
forced, nor assaulted nor there was any genital contact etc. from
the side of the petitioner.
8. Not only this, in her statement before the Magistrate
recorded under Section 164 Cr.P.C., she does not support any of
9.
r to
the allegations or charges, for which the petitioner has been
accused of.
If that was not enough, in case now the medical
opinion based upon the report of the FSL is perused, it is clearly
evident that virtually there was no evidence of sexual assault in
this case and as observed above, these allegations are not even
prima facie established or even supported by the victim herself.
Thus, prima facie this Court is of the considered opinion that the
entire investigation is a result of botched up at the hands of the
investigation agency.
10. The statement under Section 154 Cr.P.C. has been
recorded by C. Shakuntla whereas the investigation is being
carried out by SI/SHO Surinder Sharma, P.S. Janjehali. Therefore,
let both of them remain present before this Court on 07.09.2018.
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11. Taking into consideration the entirety of the facts and
circumstances of the case, I feel this is a fit case where discretion
of bail is exercised.
.
12. Accordingly, the bail application is allowed and the
petitioner is ordered to be released on bail in case FIR No. 42 of
2018, dated 09.06.2018, registered with the Police Station
Janjehali, District Mandi, H.P. under Sections 363, 366, 376, 120-B
of the IPC and Section 4 of the POSCO Act and Section 3(1)W(1)
(2) of SC/ST Act, on his furnishing personal bond in the sum of
Rs.25,000/- with one surety of the like amount to the satisfaction
of the Chief Judicial Magistrate, Mandi, District Mandi, H.P., with
the following conditions:-
(i) He shall make himself available for the
purpose of interrogation, if so required and regularly
attend the trial Court on each and every date of
hearing and if prevented by any reason to do so, seekexemption from appearance by filing appropriate
application;
(ii) He shall not tamper with the prosecution
evidence nor hamper the investigation of the case in
any manner whatsoever;
(iii) He shall not 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 Court or the Police Officer, and
(iv) He shall not leave the territory of India
without prior permission of the Court.
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13. Learned Chief Judicial Magistrate, Mandi, District
Mandi, is directed to comply with the directions issued by the
High Court, vide communication No. HHC.VIG./Misc. Instructions /
.
93-IV.7139 dated 18.03.2013.
14. Any observation made hereinabove 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 hereinabove. The petition stands disposed of.
August 31, 2018
(sanjeev)
Copy dasti.
r to ( Tarlok Singh Chauhan ),
Judge
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