Himachal Pradesh High Court
Pankaj Kumar vs State Of Himachal Pradesh on 21 October, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 1789 of 2019
Reserved on : October 18 , 2019
Date of Decision : October 21 , 2019
Pankaj Kumar ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. Manoj Pathak, Advocate, for the petitioner.
For the respondent : Mr. Ashwani K. Sharma & Mr. Nand Lal
Thakur, Additional Advocates General
with Mr. Narender Thakur, Deputy
Advocate General for the
respondent/State.
Anoop Chitkara, Judge.
The petitioner, who is under arrest, on being arraigned as an accused in FIR number 14/19, dated 20.1.2019, registered under Sections 376 and 342 of the Indian Penal Code, 1860 and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act'), in the file of Police Station Dhalli, Distt. Shimla, H.P., disclosing non-bailable offences, 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 2has come up before this Court under Section 439 of the Code of Criminal Procedure, seeking regular bail.
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2. The status report stands filed. I had gone through the police file on 18.10.2019 to the extent it was necessary for deciding the present petition and on the same day after going through the same, it was returned to the learned Additional Advocate General.
3. FACTS:
The gist of the First Information Report and the investigation is as follows:
(a) The victim was born on 13.6.2003, as such, at the time of the commission of the alleged offence on 19.1.2019, she was less than 16 years of age.
(b) The victim who is a permanent resident of Tehsil Chirgaon, Distt. Shimla had come to stay with her maternal grand-father (Naana) at Malyana in Shimla, during her winter vacation. At that time she was studying in a school nearby her village.
(c) On 18.1.2019 she left her Naana's house at Malyana in Shimla to buy milk but instead of returning home, sent back the milk through a child of neighbourhood and herself went with her friends to a nearby place at Bhatta Kufer. She further stated that on the night of 18.1.2019 she stayed with her friends at Bhatta Kufer.
(d) On 19.1.2019 she went to Sanjauli where accused Pankaj met her. Accused was known to her from her school days. Accused took her to Flora Hotel in Lakkar Bazar where ::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 3 they stayed in Room No. 2 and he established sexual relation with her.
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(e) During investigation the victim was medically examined by the Doctor who found old tears in her hymen. The examining Doctor also collected swabs from her privates.
4. I have heard Mr. Manoj Pathak, learned counsel for the petitioner and Mr. Ashwani K. Sharma & Mr. Nand Lal Thakur, learned Additional Advocates General for the respondent-State.
5. I have gone through the MLC of the victim according to which the Doctor opined that the victim had indulged in sexual intercourse.
The Doctor had observed swabs from the hymen area of the victim and as per the report of the Laboratory human semen was also detected from it.
6. I have also gone through the FSL Report No. 378-A SFSL Bio (19)/90 which mentions about human semen detected from the clothes of the victim as well as her private parts and also from the knicker of accused Pankaj.
7. I have also gone through the date of birth certificate of the victim according to which she was born on 13.6.2003. The police file also contained the result of the DNA examination wherein the DNA profile obtained from the clothes of the victim tallied with the blood of the accused.
::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 48. REASONING:
(a) The accused did not take the victim away from her .
home. In fact, from Bhatta Kufer she went to Sanjauli on her own where accused met her.
(b) Surprisingly she did not return home on the night of 18.1.2019 and even did not inform her parents or Naana.
The kind of trauma her family members would have come across due to her conduct is unimaginable.
(c) Even thereafter on the next day i.e. 19.1.2019 from Bhatta Kufer, instead of returning to her Naana's house at Malyana she went to Sanjauli and went with accused Pankaj who was known to her to a hotel in Lakkar Bazar. This also points towards her conduct.
(d) According to the Doctor who had conducted her medical examination she could not say that the sexual intercourse was forcible or not.
(e) When the victim was in Flora Hotel at Lakkar Bazar then on two occasions the accused left the hotel to bring food. Ac-
cording to the Investigating Officer during this time the ac-
cused had bolted the room from outside. Even if that is true and the victim was forcibly confined in the room, then she ::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 5 would have created commotion,drawn the attention of the peo-
ple and make an attempt to set herself free.
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(f) In the statement recorded under Section 164 of the Code of Criminal Procedure, the victim although did not state specifically of putting up any resistance and the fact that for the two times the accused had left the Hotel, leaving behind the victim alone, but she did not make any effort to draw atten-
tion of people or made commotion or called anyone.
(g) At 9.00 p.m. when she was returning from the hotel she did not inform the Hotel Manager of any pressure being ex-
erted by the accused on her. This conduct of the prosecutrix will be a factor to consider the prayer of bail for the petitioner.
(h) Another factor is that the accused is also 20 years of age. If the victim was slightly less than 16 years of age then the accused cannot be somebody who can be termed as a grown up adult. The age gap points towards natural attrac-
tion.
(i) Although the DNA report connects the accused with sexual intercourse but all the above factors point out towards just statutory rape.
(j) Section 375(d) (sixthly), states that sexual intercourse, even with the consent of the girl, when she is under 18 years ::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 6 of age, amounts to rape. Similarly, Sections 4 of POCSO Act, deals with penetrative and aggravated sexual assaults. In .
POCSO Act, Section 2(d) states that the child means any child below the age of 18 years. Therefore, even although on the face of it, it seems to be a case of consent, but consent has to be pleaded and proved, which cannot be done so in this case, because of the age and even if it is so done, it would be statu-
tory rape.
(k) Despite the fact that the petitioner, who is a 20 years old boy, had sexual intercourse with child of 15 years, but it does not mean that there is no power with this Court to grant bail.
(l) Whatever is the ultimate outcome of the allegations can not be commented at this stage. There is no provision in the Indian Penal Code or POCSO Act, which creates a total bar for grant of bail.
(m) The petitioner is in judicial custody since 22.1.2019.
(n) The investigation in the case is complete and no recov-
ery is to be effected. Therefore, no purpose would be served to continue the judicial custody.
(o) The petitioner is a permanent resident of address men- tioned in the memo of parties. Therefore, his presence can al- ways be secured.
::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 7(p) I am satisfied that no purpose will be served if the bail petitioner is continued in judicial custody.
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(q) I am of the considered view that the petitioner has made out a case for grant of bail.
9. In the result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of the Trial Court/Sessions Judge/Additional Sessions Judge, Shimla.
The learned counsel for the accused as well as the attesting person shall explain the conditions of this bail to the petitioner.
10. This Court is granting the bail subject to the conditions mentioned in this order. The petitioner undertakes to comply with all the directions given in this order and the furnishing of bail bonds by the petitioner in acceptance of all such conditions:
1. The petitioner shall neither influence nor try to control the investigating officer in any manner whatsoever.
2. The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or tamper with the evidence.
3. The petitioner undertakes not to contact the complainant, victim and witnesses to threaten or browbeat them or to use any pressure tactics.::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 8
4. Until the statements of the victim and other non official witnesses, are recorded, the petitioner accused shall not stay within a distance of 10 Kilometers radius from the village .
Dhamwadi, P.O. Tikkari, Tehsil Chidgaon, Distt. Shimla, where house of the prosecutrix situates. However, irrespective of these conditions, the petitioner is permitted to visit his Lawyers, Courts and Hospitals. The petitioner shall inform the SHO of above mentioned Police Station about the address where he would be residing. After the recording of the statements of the aforesaid witnesses, this condition shall automatically come to an end.
5. In case of emergency, whenever, the accused is required to visit his home, then he shall take permission of the SHO/I.O. or any superior Officer of the concerned Police Station or of Pradhan/Up-Pradhan//Member of Panchayat, in whose jurisdiction, the residence of the victim, falls. But in no situation, he shall stay at this place for more than a week at a stretch. This condition is being laid so that no trauma is caused to the victim, at least till the time of recording of the statement of the victim in Court. Such a condition is neither arbitrary nor unreasonable and the only purpose is that the victim is unable to come face to face with the accused and also has been imposed with a view that the accused is unable to influence the victim.
6. In case, the petitioner is arraigned as an accused of the commission of any offence, prescribing the sentence of imprisonment for more than 3 years, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR and it shall be open for the State to ::: Downloaded on - 22/10/2019 20:24:55 :::HCHP 9 apply to this Court, for cancellation of this bail, if it deems fit and proper.
7. The petitioner shall either sell or deposit all the fire arms .
alongwith ammunition and arms licences, if taken, before the concerned authorities within 30 days from today.
8. The petitioner undertakes to attend the trial.
11. It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the Petitioner. r
12. Respondent shall send a copy of this order to S.H.O. of the concerned Police Station.
13. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
14. Petition stands allowed in the aforesaid terms.
Copy dasti.
(Anoop Chitkara), Judge.
October 21 , 2019 (PK)
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