IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No. 1222 of 2018
Decided on :13.11.2018
.
Khem Chand …..Petitioner.
Versus
State of Himachal Pradesh ….Respondent.
Coram:
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Sudhir Thakur, Advocate.
For the respondent: Mr. Hemant Vaid Additional
Advocate General with Mr. Vikrant
Chandel, Dy. A.G. for the
respondent-State.
Sureshwar Thakur, J (oral)
The instant petition has been filed by the
bail/applicant/accused, under, Section 439 Cr. P.C., wherein
he seeks indulgence, of his being ordered to be released from
judicial custody, whereat he is extantly lodged, for, his allegedly
committing offences, constituted under Section 376 of IPC and
under Section 4 of POCSO Act, under FIR No. 217 of 2018,
registered with Police Station, Sadar Solan.
2. The initial sexual intercourse, interse the bail-
applicant and the prosecutrix, occurred at a stage when the
latter was a minor, hence was lacking the legal capacity to mete
1
Whether reporters of the local papers may be allowed to see the judgment?
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consent, to, the apposite sexual overture(s), of, the bail-
.
applicant, and, importantly, at, that stage she was aged two
months less than 18 years. The afore occurrence is alleged to
have taken place at Sadhna Guest House, located at Sadhupul
Road, Kandaghat. For, the afore propogation of the prosecutrix,
to, hence acquire credibility, (a) enjoined, both, the
Investigating Officers to collect the original of the register hence
whereunder entries, occur rather making disclosure(s) qua the
accused alongwith the prosecutrix, on the fateful day, hence
residing thereat, b) the signatures made against the apposite
scribing(s) also, being sent to the FSL concerned, for rendition
of an opinion thereon. However, the Investigating Officer
concerned has failed to collect the original register, and, has
also failed to send to the FSL concerned, the, signatures
purportedly made by the bail-applicant, against, the apposite
entries, existing thereon. C) Furthermore, the employee of the
Hotel concerned has also failed to record any entry qua the
bail-applicant alongwith the prosecutrix rather residing thereat.
3. In aftermath, prima-facie, at this stage, no
credibility can be imputed to the propagation, of, the
prosecution, qua the initial occurrence(s), which occurred
thereat, significantly, when thereat the prosecutrix was a
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minor, hence was disabled to mete consent to the sexual
.
overtures, of, the bail-applicant, being both credible or reliable.
Contrarily, this Court is constrained to deprecate, and, censure
the afore failure(s), of, the Investigating Officer concerned,
hence to make the afore endeavors.
4. Two occurrence(s), subsequent to the afore
occurrence, also allegedly occurred, at a stage, when the
prosecutrix had attained majority, and held the legal capacity,
to mete consent, to the sexual overtures of the bail-
applicant/accused, (i) the afore occurrence(s) hence occurred,
purportedly under an allurement or pretext of marriage, offered
by the bail-applicant, to, the prosecutrix. However,
subsequently, she declined to accept the offer of marriage,
made to her by the bail-applicant, refusal whereof emanates,
from, the factum of bail-applicant mis-revealing his identity,
and, also his source of income. Nonetheless, the afore apposite
declining, by the prosecutrix cannot gather any vigor, (ii) as
both the bail-applicant and prosecutrix, are, reported to this
Court, by the Investigating Officer concerned, to reside in close
proximity (iii) and, when hence, she given the prolonged
duration of her amorous relationship with the bail-applicant,
was hence equipped to gather knowledge about his identity, (iv)
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thereupon her purported allegation, qua the bail-applicant mis-
.
revealing his identity, and, also his source of income, are
incredible, (v) contrarily, prima-facie, her allegations qua sexual
intercourse(s), which occurred interse her and the bail-
applicant, being spurred by the bail applicant making
allurements of marriage, vis-à-vis her, rather wane and
subside.
5. to
The learned Additional Advocate General, submits,
that the bail-applicant, had, viralised certain photographs, of,
the prosecutrix, and, the viralisation has occurred onto the
mobile of the brother of the prosecutrix, also. However, the
report of the FSL does not support the aforesaid submission
addressed before this Court, by the learned Addl. A.G.
6. In summa, for the aforesaid reasons, this Court is
constrained to grant the facility of bail to the bail-applicant,
significantly when at this stage, no evidence has been adduced
by the prosecution, that in the event of bail being granted to the
bail-applicant, there is hence every likelihood of the bail-
applicant fleeing from justice, or tampering with prosecution
evidence, (iii) hence this Court is fortifyingly constrained, to,
make an order that the bail-applicant shall be released from
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judicial custody, subject to compliance, with, the hereinafter
.
extracted conditions:-
i) That he shall furnish personal bond in the sum of
Rs. 1,00,000/-, with two sureties, in the like
amount, to the satisfaction of the trial Court
concerned.
ii)
That he shall join the investigation, as and when
required by the Investigating agency.
iii) 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
dissuade him from disclosing such facts to the
Court or to the Police.
iv) That he shall not leave India without the prior
permission of the Court.
v) That he shall deposit his passports, if any, with the
Police Station, concerned.
vi) 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.
7. Any observation made herein above shall not be
taken as an expression of opinion on the merits of the case and
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the trial Court shall decide the matter uninfluenced by any
.
observation made herein above.
Copy of the order be sent to Superintendent of
Police, Solan.
Copy dasti.
13.11.2018
(kalpana)
(Sureshwar Thakur),
r Judge
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