Himachal Pradesh High Court
Shashi Kumar vs State Of Himachal Pradesh on 23 July, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 419 of 2020
Reserved on : July 20 , 2020
Date of Decision: July 23 , 2020
Shashi Kumar ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. Satyen Vaidya, Senior Advocate with Mr. Vivek Sharma, Advocate, for the petitioner. For the respondent : Mr. Nand Lal Thakur, Additional Advocate General for the respondent/State.
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE Anoop Chitkara, Judge.
For repeatedly indulging in coitus with his real Bhanji (niece), the petitioner, who is her Mama (Mother's brother) and is under arrest, on being arraigned as an accused in FIR No.120 of 2019, dated Aug 26, 2019, registered under Sections 376 of the Indian Penal Code, 1860 and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, in the file of Police Station Badsar, Distt. Hamirpur, H.P., disclosing non bailable offences, has come up before this Court under Section 439 of the Code of Criminal Procedure, seeking regular bail.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 30/07/2020 20:20:33 :::HCHP 22. Status report stands filed. I have seen the status report as well as the police file to the extent it was necessary for deciding the present .
petition, and the police file stands returned to the police official.
3. I have heard learned Counsel for the petitioner and the learned Additional Advocate General for the respondent-State.
4. Prior to the present bail petition, the petitioner had filed a bail petition under Section 439 CrPC, before learned Special Judge, Hamirpur, HP. However, vide order dated 30.10.2019, passed in Bail Application No. 135 of 2019, the Court had dismissed the same. Also subsequent bail petition filed under Section 439 CrPC before this Court was dismissed vide order dated 3.1.2020, passed in Cr.MP(M) No. 2283 of 2019.
FACTS
5. The gist of the First Information report and the Investigation is as follows:
(a)The victim was born on Aug 11, 2004. After one year of her birth her mother left her with her brother. The family of her mother's brother comprised of her two unmarried sisters apart from her parents.
(b) When the victim was in Class-7, then her Maama, Shashi Kumar, petitioner herein, raped her. After that he kept on indulging in coitus with her on numerous occasions. During those days her Maama (petitioner) was unmarried. The victim could not pass her final examination and after that she moved to her house at Balh Rehre. She further stated that these days she studies in Class-10.
(c) On Jul 7, 2019, she had gone to the house of her Maama (petitioner) at Bijhdi. Her Maama had married two years ago.::: Downloaded on - 30/07/2020 20:20:33 :::HCHP 3
His wife was pregnant and as such she stayed in a separate room. On Jul 11, 2019, during night time, her Maama (petitioner) came to her room and committed sexual intercourse .
with her.
(d) The victim stated that she had her last mensuration cycle on Jun 28, 2019, and after that she did not have menses. On Aug 3, 2019, she returned to her home. After that she started having pain in her abdomen. On this her aunt (Tai) took her to a Doctor. After examination, the Doctor conducted test for pregnancy which resulted positive. The said Doctor informed the Bangana police and after that the female police officials recorded her statement to the aforesaid effect leading to the registration of the present FIR.
(e) The police arrested the petitioner on Aug 27, 2019 and got his DNA sample on FTA Card through Medical Officer.
(f) On Aug 28, 2019, the police took the victim to Judicial Magistrate Ist Class, Court No. 2, Hamirpur where she made her statement under Section 164 CrPC.
(g) On Aug 31, 2019 the Doctor preserved the sample from her foetus and handed it over to the police for DNA test.
(h) During investigation the police also took into possession the date of birth certificate of the prosecutrix according to which the victim was born on Aug 11, 2004.
(i) The DNA report confirmed that the petitioner was the biological father of the foetus and the victim its biological mother.
6. Learned counsel for the petitioner places reliance upon two decisions of a Coordinate Bench of this Court reported in Jagdish Chand ::: Downloaded on - 30/07/2020 20:20:33 :::HCHP 4 vs. State of Himachal Pradesh, 2018 (2) Shim.LC 967 and Dinender Morya vs. State of Himachal Pradesh, 2018(2) Shim.LC 983.
.
7. There can be no doubt that in both the cases this Court had granted bail to the accused who were facing prosecution for indulging in coitus with minor girls. However, present case is clearly distinguishable from the facts of the judicial precedents on the ground that here the relationship of the victim with the petitioner is of Maama & Bhanji. The relationship of Maama is as pious as that of a father.
8. Mr. Satyen Vaidya, Ld. Senior Advocate contends that the victim in her testimony during trial, did not support the case of the prosecution and blamed another person for the rape. He further states that accused wants to lead evidence in his defence and to do so effectively, he needs to come out of prison, hence bail.
9. Mr. Nand Lal Thakur, Ld. Additional Advocate General contends that the DNA of the accused connects with the pregnancy of the victim, which is sufficient to deny bail.
10. In the present case the result of the DNA test, which has crossed the stage of eclipse and accepted as best scientific evidence, implicates the petitioner.
11. If this Court grants bail on the analogy that the accused wants to lead evidence in his defence and to do so effectively, he needs to come out of prison, then to get bail, what an accused is do is to state that he wants to lead evidence in his defence, and after that keep on asking time ::: Downloaded on - 30/07/2020 20:20:33 :::HCHP 5 on one pretext or the other. Be that as it may, depending upon the gravity of the offence, criminal history of the accused, and the nature of evidence .
the accused wants to adduce by demonstrating that to get such evidence he needs to be out of jail, the trial Court may consider interim bail for limited period. However, the bail petition lacks any such pleadings.
12. Indisputably the trial has reached a final stage, statements of prosecution witnesses as well as the statement of accused under section 313 CrPC stand recorded. If this Court grants bail or rejects the same, it is likely to influence the trial Court to arrive at a verdict that otherwise should be independent of all external influences whatsoever.
13. Given above, it would be appropriate for the petitioner to file a petition for grant of bail before the Ld. Trial Court. Resultantly, the petition is dismissed.
14. 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.
Petition stands disposed of in the aforesaid terms.
(Anoop Chitkara), Judge.
July 23 , 2020 (PK) ::: Downloaded on - 30/07/2020 20:20:33 :::HCHP