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Vinod Kumar vs State Of Himachal Pradesh on 25 February, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 165 of 2020
Decided on: 25th February, 2020

.

Vinod Kumar ….Petitioner

Versus
State of Himachal Pradesh …Respondent

Coram

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Mohinder Singh Thakur, Advocate.

For the respondent/State: Mr. Shiv Pal Manhans and Mr. P.K. Bhatti,
Addl. AGs, with Mr. Amit Dhumal, Dy. AG.

SI Madan Lal, Incharge Police Post Lakkar

Bazzar, Shimla, H.P.

Chander Bhusan Barowalia, Judge. (oral).

The present bail application has been maintained by the

petitioner under Section 439 of the Code of Criminal Procedure seeking his

release in case FIR No. 302 of 2019, dated 30.12.2019, under Section 376

IPC and Section 4 of POCSO Act, registered in Police Station Sadar, Shimla,

District Shimla, H.P.

2. As per the averments made in the petition, the petitioner is

innocent and has been falsely implicated in the present case. He is neither

in a position to tamper with the prosecution evidence nor in a position to

flee from justice. No fruitful purpose will be served by keeping him behind

the bars for an unlimited period, so he be released on bail.

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2

3. Police report stands filed. As per the prosecution story, on

30.12.2019 mother of the prosecutrix (name withheld) made a written

complaint to the police wherein she alleged that she is a labourer and has

.

four daughters and a son. As per the complainant, her elder daughter went

to Nepal and son went to Banaras for work. Her husband has married

another woman and he lives with her at Barmu. On 18.12.2019 her twin

daughters went to Barmu to meet their father and one of the daughters

returned on the same day. On 30.12.2019 sister-in-law of the complainant

informed her that the prosecutrix is not present in the house of her

husband at Barmu and when the complainant reached her house, the

prosecutrix, alongwith her father, came weeping and told that the petitioner

sexually molested her. Upon the complaint, so made by the complainant,

police registered a case and the investigation ensued. The prosecutrix was

medically examined and relevant scientific samples were taken into

possession. During the course of investigation it was unearthed that the

petitioner broke upon the lock of the room of his friend and sexually

molested the prosecutrix. Police prepared the spot map and recorded the

statements of the witnesses. On 31.12.2019 the petitioner was arrested

and medically examined. Scientific samples were taken into possession for

analysis. Police effected the relevant recoveries and also procured the date

of birth record qua the prosecutrix. Statement of the prosecutrix was

recorded under Section 164 Cr.P.C. Police recovered the rod, with the help

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of which the petitioner allegedly broken the lock, and also the broken lock,

which were taken into possession. Scientific samples were sent to SFSL,

Junga, for analysis. As per the police, the petitioner is resident of Nepal

.

and in case he is enlarged on bail, he may flee from justice. Lastly, it is

prayed that the bail application of the petitioner be dismissed, as the

petitioner has committed a serious crime. In case the petitioner is enlarged

on bail, at this stage, he may tamper with the prosecution evidence and

may also flee from justice, so the bail application of the petitioner be

dismissed.

4. I have heard the learned Counsel for the petitioner, learned

Additional Advocate General for the State and gone through the record,

including the police report, carefully.

5. The learned Counsel for the petitioner has argued that the

petitioner has been falsely implicated in the present case. He has further

argued that the petitioner is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice. He has further

argued that no fruitful purpose will be served by keeping the petitioner

behind the bars for an unlimited period, especially when investigation is

complete and nothing is to be recovered at the instance of the petitioner, so

the petition may be allowed and the petitioner may be enlarged on bail.

Conversely, the learned Additional Advocate General has argued that the

petitioner has committed a serious crime and in case he is enlarged on bail,

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4

he may tamper with the prosecution evidence and may also flee from

justice, so it is prayed that the bail application of the petitioner may be

dismissed.

.

6. In rebuttal the learned Counsel for the petitioner has argued

that the petitioner cannot be kept behind the bars for an unlimited period,

especially when investigation is complete and in the wake of the fact that

the custody of the petitioner is not required by the police, so the petition be

allowed and the petitioner be enlarged on bail.

7. At this stage, considering the age of the petitioner, who is only

20 years of age, considering the forensic report, the fact that investigation

in the case is complete and nothing is to be recovered at the instance of the

petitioner, the petitioner is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice, custody of the

petitioner is not at all required by the police, considering the overall

material, which has come on record, and without discussing the same at

this stage, the petitioner is ready and willing to abide by the terms and

conditions of bail, in case so granted, and also the fact that the petitioner

cannot be kept behind the bars for an unlimited period, so this Court finds

that the present is a fit case where the judicial discretion to admit the

petitioner on bail is required to be exercised in his favour. Accordingly, the

petition is allowed and it is ordered that the petitioner, who has been

arrested by the police in case FIR No. 302 of 2019, dated 30.12.2019, under

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Section 376 IPC and Section 4 of POCSO Act, registered in Police Station

Sadar, Shimla, District Shimla, H.P., shall be released on bail forthwith in

this case, subject to his furnishing personal bond in the sum of `25,000/-

.

(rupees twenty five thousand) with one surety in the like amount to the

satisfaction of the learned Trial Court. The bail is granted subject to the

following conditions:

(i) That the petitioner will appear before the
learned Trial Court/Police/authorities as and

when required.

(ii) That the petitioner will not leave India without
prior permission of the Court.

(iii) That the petitioner will 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/her from disclosing
such facts to the Investigating Officer or Court.

8. In view of the above, the petition is disposed of.

Copy dasti.

(Chander Bhusan Barowalia)

25th February, 2020 Judge
(virender)

25/02/2020 20:24:20 :::HCHP

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