IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MPM No. 488 of 2017.
Decided on: 22.5.2017.
.
Vijay Kumar …Petitioner.
Versus
State of Himachal Pradesh … Respondent.
…………………………………………………………………………
Coram
The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
For the petitioner. : Mr. N.S. Chandel, Advocate.
For the respondent. : Mr. Vikram Thakur, Dy. Advocate
General with Ashok Kumar ASI, PS.
Bassi.
Ajay Mohan Goel, J (Oral)
Mr. Ashok Kumar, Assistant Sub Inspector, Police Post,
Bassi, Tehsil Joginder Nagar has produced the records of the case. I
have heard learned counsel for the parties and have also gone through
the records of the case.
2. By way of this petition filed under Section 439 of the
Code of Criminal Procedure, the petitioner has prayed for grant of
regular bail in connection with FIR No. 177 of 2015 registered at
1
Whether reporters of the local papers may be allowed to see the judgment?
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Police Station, Joginder Nagar, District Mandi under Section 376 of
Indian Penal Code and Section 4 of Protection of Child from Sexual
.
Offence Act. According to learned counsel for the petitioner, the
petitioner was taken into police custody since 9/10.11.2015. A perusal
of the contents of FIR demonstrates that the case registered against
present petitioner is that petitioner had sexually molested the victim,
who happened to be a minor and was also in close relation to the
petitioner and who later on gave birth to a female child whose father
was the present petitioner as per the victim. The petitioner had earlier
also filed a regular bail application before the learned Sessions Judge,
Mandi, but the same was withdrawn by him.
3. Mr. Chandel learned counsel for the petitioner submitted
that though the allegations alleged against the petitioner are to the
effect that he has committed offence punishable under Section 376 of
IPC and Section 4 of the Protection of Child from Sexual Offences,
however, the victim whose statement stood recorded before learned
trial court on 11.7.2016 has denied her having been sexually molested
by the petitioner or that she was a minor as on the date when the
alleged incident taken place.
4. I have perused the statement of victim which has been
recorded in the Court on 11.7.2016 and perusal of the same
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demonstrates that in this statement the victim has stated that accused
had not committed rape with her and in fact accused who was her
.
brother-in-law used to visit her house and they had developed physical
relations with each other. A perusal of the statement of the victim
further demonstrates that she has mentioned therein that her date of
birth was 12.1.1997. In her cross-examination by the defence she has
admitted that her date of birth was 12.1.1997. Learned counsel for the
petitioner has also drawn the attention of this Court to the statement of
one Desh Raj, Panchayat Secretary, Gram Panchayat Bhararu who has
been examined in the Court as PW3 and has placed on record
certificate Ext. PW3/B which purportedly is the document which
demonstrates that the date of birth of the victim is 12.1.1998.
However, in his cross-examination he has admitted the suggestion that
the name of the father of victim is Brahamu whereas the name of the
person whose date of birth was reflected in certificate Ext. PW3/B
was Brahama Nand.
5. Prima facie keeping in view the statement of the
prosecutrix, to the effect that her date of birth is 12.1.1997 and further
that there was a consensual physical relationship between her and the
petitioner, apparently the prosecutrix was a major even as on nine
months prior to the date of birth of the child whose date of birth is
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30.10.2015. In these circumstances, in my considered view, it is a fit
case where the petitioner can be released on bail. Even otherwise it is
.
for the prosecution to prove the guilt of the accused and in case the
prosecution is able to establish before learned trial court the guilt of
the accused, he shall face the consequences. However, at this stage, in
my considered view petitioner has been able to make out a prima facie
case for his enlargement on bail. Accordingly, this petition is allowed
and the petitioner is ordered to be enlarged on bail, on his furnishing
personal bond to the tune of Rs. 50,000/- with one surety in the like
amount to the satisfaction of learned trial court, subject to 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,
seek exemption 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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6. It is clarified that the observations made by this Court in
this order are only for the purpose of adjudicating upon the present
.
bail petition and the learned trial court shall not be influenced by any
of these observations while deciding the case on merits, in the course
of trial. It shall be open for the prosecution to move this Court for
cancellation of the bail in case petitioner abuses the bail which has
been granted in his favour.
Copy dasti.
(Ajay Mohan Goel)
r Judge
22nd May, 2017
(Guleria)
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