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Roop Dutt Sharma vs Coram on 13 July, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr.MP(M) No. 705 of 2018.

.

Reserved on: 6th July, 2018.

Date of Decision : 13th July, 2018.

Roop Dutt Sharma …..Petitioner.

Versus

State of H.P.

Coram
r to
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
…..Respondent.

Whether approved for reporting? Yes.

For the Petitioner: Mr. R.K. Gautam, Sr. Advocate

with Ms. Megha Kapur Gautam,
Advocate.

For the Respondent: Mr. Hemant Vaid, Addl. A.G.

with Mr. Y.S. Thakur and Mr.
Vikrant Chandel, Dy. Advocates

General.
__

Sureshwar Thakur, Judge (Oral)

The bail applicant, is, suffering judicial

incarceration, for, his allegedly committing offences

constituted under Sections 363, 366, and, Section 376 of

the IPC, and, for his allegedly committing offences,

embodied in Sections 4, 7 and 16 of the POCSO Act, in

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2

respect whereo, FIR No. 7 of 2018 of 8.02.2018, is lodged

with Women Police Station, Baddi.

.

2. The prosecutrix, has, solemnised marriage with

the bail applicant, and, in her sworn affidavit, she has

made a disclosure qua hers, at the relevant time, being a

major. The marriage certificate, qua the solemnisation, of,

marriage inter se the bail applicant, and, the prosecutrix

time, being, a, major.

r to
also elborates therein qua the prosecutrix, at the relevant

However, in case, the aforesaid

material is imputed sanctity, thereupon, the offences

allegedly committed by the bail application, would prima

facie, be hence construable to be with the consent of the

prosecutrix, (I) dehors, in her statement, recorded, under

Section 164 of the Cr.P.C., before the learned Judicial

Magistrate concerned, she ascribes, vis-a-vis, the bail

applicant, an, incriminatory role, qua his, on, 8.02.2018,

subjecting her, to, forcible sexual intercourse.

3. However, before proceeding to mete credence,

to the aforesaid disclosures, unfolded, in the affidavit

sworn, by the prosecutrix, and, in the apt marriage

certificate, (a) it is necessary, to, bear in mind, the further

factum of the MLC, appertaining, to the prosecutrix,

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contrarily unfolding therein, qua the prosecutrix being

aged 15 years, and, also the school leaving certificate,

.

appertaining to the prosecution, also, alike therewith

unraveling, qua the prosecutrix, at the relevant time,

being a minor.

4. In summa, the comparative worth, of, the

aforesaid material, is, enjoined to be determined. In the

apt MLC, though the prosecutrix, is, delineated therein, to

be, at the relevant time, hence a minor, yet for the

aforesaid reflections, to, carry vigour, (a) it stood enjoined,

upon, the doctor concerned, to ensure hers appending, her

signatures or thumb impression thereon, (b) whereas, with

the apt MLC, neither carring the signatures of the

prosecutrix, nor with her thumb impressions, standing

embossed thereon. (c) Contrarily, with, the thumb

impression(s) of her mother, standing, embossed thereon,

(d) thereupon, it is to be invincibly, concluded, qua the

delineations borne therein, qua the prosecutrix, at the

relevant time, being a minor, not, prima facie, carrying any

solemnity or gravity. More so, when the mother, of, the

prosecutrix has therein revealed, her willingness, for her

minor daughter undergoing, a, radiological test, for, her

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4

radiological age hence being determined. (i) Willingness

whereof, would not, emanates unless, she is unsure about

.

the exact date of birth of her daughter. Furthermore,

though, the school leaving certificate also unravels qua

the prosecutrix, at the relevant time, being a minor, yet,

thereupon, too, no prima facie sanctity, is to be imputed,

(a) given, the Investigating Officer, not, collecting from the

quarters concerned, the, birth certificate of the minor

prosecutrix, whereas, the birth certificate, alone, given its

solitarily comprising the best evidence qua the relevant

fact, would hence constrain this Court to mete

authenticity, vis-a-vis, the reflections qua the date, of,

birth of the prosecutrix, as borne, in her school leaving

certificate. Contrarily, want of existence, on, record of the

birth certificate of the prosecutrix, as, maintained with the

offices concerned, does prima facie, bely her age, as,

borne in the apt school leaving certificate, rather, the,

reflections borne in the school leaving certificate qua the

prosecutrix, at the relevant time, being a minor, are, to be

construed to be sumisally and conjecturely made,

whereupon, hence no reliance can be imputed.

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5

5. Consequently, lack of firm, and, apposite best

documentary material on record, displaying, qua the

.

prosecutrix, at the relevant time, being a minor, rather

when the mother of the prosecutrix, has evinced in the

apposite MLC, hence her willingness, qua, the prosecutrix

undergoing, the, radiological test, (i) hence, rears a

formidable conclusion qua an aura of uncertainty, hence,

existing, even in the mind of the mother, of, the

prosecutrix, vis-a-vis, the exact date of birth, of, the

prosecutrix, (ii) whereupon, it is to be concluded qua the

prosecutrix being, a major, at the relevant time. In

aftermath, even if, she in her statement recorded, under

Section 164 of the Cr.P.C., hence attributes an

incriminatory role, vis-a-vis, the bail applicant, yet with

hers thereafter, solemnising, a, valid marriage, with the

accused, thereupon, it is to be concluded, that, the

aforesaid ascribed penal misdemeanors, prima facie, at

this stage, hence fading into insignificance. Moreover,

with the State not bringing on record, any material

displaying that in the event of bail applicant being

released on bail, there is any likelihood of his fleeing from

justice or tampering with the prosecution evidence, further

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6

constrains this Court to accord the facility of bail to the

bail applicant. Consequently, the present bail application is

.

allowed and the indulgence of bail is granted to the bail

applicant subject to compliance of the following

conditions:-

(i) that the bail applicant shall furnish personal

bond in the sum of Rs.50,000/- with two local

sureties in the like amount to the satisfaction of

the learned Addl. Chief Judicial Magistrate,

Nalagarh

(ii) that the bail applicant 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 any police officer;

(iv) that he shall not leave India without the prior

permission of the Court ;

(v) that he shall deposit his passport(s), if any, with

the SHO, Police Station concerned;

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6. With the aforesaid observations the present

.

petition stand disposed of. It is, however, made clear that

the findings recorded hereinabove shall have no bearings

on the merits of the case.

Dasti Copy.

(Sureshwar Thakur)
13 th
July, 2018 Judge.
(jai) r

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