IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1122 of 2018
.
Decided on: 10.10.2018
Om Prakash
…Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?
For the petitioner: Mr.Deepak Kaushal, Advocate.
For the respondent: Mr. Shiv Pal Manhans, Additional
Advocate General, with Mr.R.P.Singh
and Mr. Raju Ram Rahi, Deputy
Advocate Generals.
ASI Bhupender Kumar, Police Station
Renuka Ji, District Sirmaour, H.P. is
present in person.
Vivek Singh Thakur, Judge (oral)
Petitioner has preferred present petition under
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Section 439 of the Code of Criminal Procedure (hereinafter
referred to as ‘CrPC’) for grant of regular bail in case FIR
.
No. 39 of 2017, dated 11th September, 2017, under Section
376 of the Indian Penal Code (hereinafter referred to as
‘IPC’) and Section 4 of Protection of Children from Sexual
Offences Act, (hereinafter referred to as POSCO), registered
2. to
at Police Station Renuka Ji, District Sirmaur.
Brief facts of the case are that on receiving a
telephonic call on 30.08.2017,that 19 years old prosecutrix
was bearing pregnancy of six months from the loins of some
villager, whose parents had administered her medicine for
abortion and it was further informed by the caller that in
the record of ‘Anganbari’, age of the victim was 18 years,
family of victim was approached by Mr.Rajender Singh and
Kumari Vinita, members of the Child Helpline, Nahan,
District Sirmaur on 10.09.2017. Before that on 01.09.2017,
aforesaid information was also transmitted by Tara Verma,
Coordinator,Child Helpline, Nahan, in writing, to the SHO,
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Police Station, Renuka Ji, District Sirmaour. Thereafter, on
10.09.2017, further information was transmitted to the
.
Child Welfare Committee by Vinita, a team member, Child
Helpline, Nahan, reiterating the information sent to SHO,
Police Station, Renuka Ji and stating further that on
01.09.2017, the matter was reported to the police through e
mail and on telephonic inquiry from Dadahu Police Station,
it had been revealed that police had visited the house of
child, but she was not found at home and statements of the
parents were recorded, copy whereof had also been supplied
to the Child helpline. Thereafter, on 08.09.2017, the Child
helpline Team received date of birth certificate from the
Panchayat Secretary, according to which, date of birth of the
female child was 30.12.2004. It is further case of the
prosecution that on 10.09.2017, the victim along with her
mother was brought to Nahan and on 11.09.2017, victim
was admitted in the hospital and on the very same day, her
mother had lodged the complaint in the Police Station,
Renuka Ji, alleging therein that her daughter (victim)
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disclosed her that the petitioner had violated the person of
her daughter in their fields about two months back, when
.
she had been grazing cattle in the forest. Thereafter, he had
threatened the victim that on disclosure of his act he would
die by consuming poison.
3. It is a matter of fact that the victim is a child of
first marriage of her mother with Gopal Singh, who has
stated to the police that his marriage was solemnized with
Leela Devi about 1415 years ago and Leela had cohabited
with him only for 12 months. Therefore, he is not having
knowledge about the date of birth of the victim. Puran
Chand is the second husband of Leela Devi. According to
him, Leela Devi had married him 1314 years ago and at
that time, she was having a daughter from earlier marriage,
who is victim and at the time of his marriage, the victim was
about 23 years old, but her name had not been recorded in
the panchayat and in 2004, he had got her name registered
in the Family Register of his Panchayat. Leela Devi, mother
of victim has also deposed to the same effect with further
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averments that on account of tender age, her and her
daughter’s name was not entered in the panchayat of her
.
earlier husband and the victim was firstly sent to ‘Balbari’
and when she was grown up enough, she was admitted in
the school. She has shown her ignorance about the date and
time of registration of her name in the panchayat. As per
police report, sample sent for matching D.N.A. profile has
not been received yet. The alleged incident of early 2017 and
the petitioner is behind the bar since 11.09.2017. There is
also a letter on record, sent by Tara Verma, Coordinator,
Child Helpline, to SHO, Police Station Renuka Ji, wherein it
is stated that on 30.08.2017, at about 9:30 a.m., a call was
received, disclosing therein that 19 years old victim, having
six months pregnancy was sometimes disclosing that she
was bearing a child of her step father and some times
stating that the child belongs to loins of some person from
the village. Admittedly, the child is living with the step
father. From the record, it appears that police has not
investigated the angle of pregnancy caused by the step
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father, as according to the police officer present in the Court,
the sample of fetus, and for matching with D.N.A. profile
.
with sample of blood of the petitioner, has only been sent.
4. The veracity of allegations including the fact of
actual age of the victim is yet to be established by the
prosecution before the Trial Court. From the evidence on
record, nothing can be said with certainty with respect to
the age of prosecutrix and also that it was only the
petitioner, who is responsible for causing pregnancy to the
victim child. The delay in receiving the report from State
Forensic Science Laboratory with respect to matching of
D.N.A. profile is also causing prejudice to the petitioner. It is
noticeable that before intervention of Child Helpline,
parents had not reported the matter to police, but were
trying to abort. No doubt, under the POSCO Act, there is a
reverse onus on the accused to prove his innocence. But in
the facts and circumstances of the present case as discussed
above, on the basis of record produced before me, I am of the
opinion that it is a fit case for grant of bail.
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5. Therefore, in the aforesaid facts and
circumstances, it would not be in the interest of justice to
.
keep the petitioner in judicial custody during pendency of
trial. Accordingly, petitioner is ordered to be released on
bail in case FIR No. 39 of 2017, dated 11 th September, 2017,
under Section 376 of the Indian Penal Code and Section 4 of
Protection of Children from Sexual Offences Act, registered
at Police Station Renuka Ji, District Sirmaur, if not
required in any other case, subject to his furnishing personal
bond in the sum of ₹ 50,000/ with one surety in the like
amount, to the satisfaction of learned Trial Judge.
6. Petitioner shall further abide by the following
conditions:
(i) That the petitioner shall make himself
available to the police or any other
investigating agency or Court in the
present case as and when required;
(ii) That the petitioner 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 Court or to
any police officer or tamper with the
evidence. He shall not, in any manner,11/10/2018 22:57:50 :::HCHP
9try to overawe or influence or intimidate
the prosecution witnesses;
(iii) That he shall not obstruct the smooth
.
progress of the trial;
(iv) That the petitioner shall not commit the
offence similar to the offence to which heis accused or suspected;
(v) That the petitioner shall not misuse his
liberty in any manner;
(vi) That the petitioner shall not jump over
r the bail.
7. It will be open to the prosecution to apply for
imposing and/or to the trial Court to impose any other
condition on the petitioner as deemed necessary in the facts
and circumstances of the case and in the interest of justice.
8. In case the petitioner violates any condition
imposed upon him, his bail shall be liable to be cancelled. In
such eventuality, prosecution may approach the competent
Court of law for cancellation of bail in accordance with law.
9. Learned Trial Judge is directed to ensure
compliance of the directions issued by the High Court vide
communication No. HHC/VIG/Misc.Instructions /93IV.7139
dated 18th March, 2013, as applicable.
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10. Observations made in this petition hereinbefore
shall not affect the merits of the case in any manner and
.
will strictly confine for the disposal of this bail application
filed under Section 439 CrPC.
11. Petition stands disposed of in aforesaid terms.
Copy dasti.
October 10, 2018
(rishi)
r to (Vivek Singh Thakur)
Judge
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