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Khem Chand vs State Of Himachal Pradesh on 16 November, 2018

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?

17/11/2018 22:58:26 :::HCHP

…2…

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

17/11/2018 22:58:26 :::HCHP
…3…

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)

17/11/2018 22:58:26 :::HCHP
…4…

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

17/11/2018 22:58:26 :::HCHP
…5…

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

17/11/2018 22:58:26 :::HCHP
…6…

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

17/11/2018 22:58:26 :::HCHP

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