Himachal Pradesh High Court
Pawan Kumar vs State Of H.P on 30 December, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MP(M) No. 2215 of 2019.
.
Decided on: 30th December, 2019.
Pawan Kumar .....Petitioner.
Versus
State of H.P. .....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Vijay Kumar Arora, Advocate.
For the Respondent: Mr. Hemant Vaid, Addl. A.G. with
Mr. Vikrant Chandel, Dy. A.G.
_____________________________________________________
Sureshwar Thakur, Judge (Oral)
The bail application, is, suffering judicial incarceration, for, his allegedly committing offences, constituted under Section 3(1)(w)(i), of, the Scheduled Caste and Scheduled Tribe Prevention of Atrocities Act, and, under Sections 363, 366, 342, besides, under Section 376, of, the, IPC, qua, wherewith, FIR No. 28/2019, of, 13.2.2019, stands, lodged, in, Police Station, Theog, District Shimla, H.P. ::: Downloaded on - 03/01/2020 20:25:19 :::HCHP 2
2. Prior to the extant application becoming instituted, the, bail applicant, also instituted, Cr.MP(M) No. .
496, of, 2019, and, Cr.MP(M) No. 1053, of, 2019, before this Court, and, upon, both, the, afore applications, this Court, had, accepted, the, prayer made, by, the, counsel, for, the, bail applicant, to, permit him, to, withdraw, the, afore constituted bail applications. However, liberty Court, at, an, appropriate stage.
r to became granted, to, the bail applicant, to, re-motion, this
3. The learned Additional Advocate General, hence, submits, that, the, afore liberty granted to the bail applicant, under, the, afore previous orders, as, made, upon, the afore applications, rather to, re-motion this Court, at, an, appropriate stage, would, facilitate the bail applicant, to re-motion this Court, only, upon, evident change, of, circumstances, rather occurring, since, the, dismissal, of, the, earlier bail applications, and, upto the institution, of, the, extant bail application, hence, before this Court. He submits, that, since no change, of, circumstance, has, occurred since then upto now, thereupon, the extant bail application, deserves dismissal.
::: Downloaded on - 03/01/2020 20:25:19 :::HCHP 34. Even though, the afore submission, has, some merit, as, the earlier orders, pronounced, upon, the afore .
earlier bail applications, though, permitting, the counsel, for, the bail applicant, to, withdraw, the, afore bail applications, yet, they, do also prima facie constrain an inference, that, earlier this Court prima facie, not, noticing any infirmities in the investigations, as, became, conducted by the Investigating Officer concerned, or also in the statement of the prosecutrix, r (i) yet a vehement submission, is, addressed before this Court, by, the learned counsel appearing, for, the bail applicant, that, the earlier engaged counsel, may not, have become seized with, all, the relevant records, (ii) and, as nowat become provided to him, hence, the earlier counsel, upon, becoming de-facilitated, to, allude, to, all, the, requisite documents, as, become collected, by, the, Investigating Officer, during, the, course, of, his holding investigations,
(iii) and, wherefrom, rather, an, inference, of, the prosecutrix willfully succumbing, to, the sexual overtures, of, the bail applicant, would rather arise, given theirs making apposite therewith candid unfoldments, and, hence, this Court, becoming constrained, to, after making, ::: Downloaded on - 03/01/2020 20:25:19 :::HCHP 4 an, allusion, to, the afore evidence, hence, make, a, determination, whether, the, afore hold any aura, of, .
tenacity or not.
5. The alleged occurrence took place, on, the, intervening night, of, 12/13.02.2019, and, it became reported to the police state concerned, on the day subsequent thereto. However, on the latter day, both, the prosecutrix, and, the bail applicant, rather exchanged affidavit(s), hence, evincing their interest, to, enter into, a, wedlock, (a) nonetheless, the bail applicant resiled from his promise, to, marry the prosecutrix. Since, the afore occurred event, supervened the initial reported event, of, purported perpetration, of, forcible sexual intercourse, upon, the prosecutrix, by, the bail application, wherein, the prosecutrix alleges, vis-a-vis, the bail applicant rather subjecting her to forcible sexual intercourse, (b) and, thereupon, the initial reporting made, by, the, prosecutrix to the police, alone holds relevance, than, the afore supervening event, (c) and, thereupon, the veracity, of, allegations constituted against the accused in the FIR, vis-
a-vis, his subjecting the prosecutrix, to, forcible sexual intercourse, or, his obtaining the apposite consent, of, the ::: Downloaded on - 03/01/2020 20:25:19 :::HCHP 5 prosecutrix rather under an allurement, of, marriage, hence is to be gauged or determined alone, from, the .
collected evidence, by the Investigation officer concerned.
6. Be that as it may, even though, the bail applicant, on, the, intervening night, of, 12/13.02.2019, hence, committed, forcible sexual intercourse, upon, the prosecutrix, and, the afore occurrence took place, at, a, lonely place, and, when evidently obviously there hence being no residential abode, either during, the, course, of, his journeying thereupto along with her, in, his vehicle, and, also, in the vicinity, at the relevant site, of, occurrence, (a) thereupon, the omissions, if any, of the prosecutrix to raise shrieks, and, cries, to, attract, the, attention, of, the persons, hence, residing in the afore place, may not, prime facie, invite any inference, vis-a-vis, hers being a consensual partner, to, the perpetration, of, forcible sexual intercourse, upon, her, by, the bail applicant, (i) as, emphatically, even if, she raised shrieks or cries, they were not be hearable, by any person, hence, residing, in, the proximity(ies), of, the afore locality(ies).
However, since the prosecutrix reported the matter to the police, and, when also after, the, apposite FIR becoming ::: Downloaded on - 03/01/2020 20:25:19 :::HCHP 6 lodged, she underwent medical examinations, besides also, the, accused underwent medical examination, (ii) .
thereupon, at least, therein(s) echoings, hence, personificatory, qua, hers making adequate resistances, vis-a-vis, the perpetration, of, forcible sexual intercourse, upon, her person, and, as, comprised, in, there occurring scratches, bruises or abrasions, either on the person, of, the prosecutrix, and/or, upon, the person, of, the accused, rather were obviously enjoined to occur. However, a perusal of the MLCs, and, appertaining, to, the persons, of, the prosecutrix, and, of, the, accused, and, which became authored, on 16.02.2019, omit(s) to reflect, vis-a-vis, their occurring any abrasions or bruises, either on the person of the accused, or, on the person, of, the prosecutrix, hence, personificatory, of, there being any, forcible perpetration of sexual intercourse, upon, the, person, of, the prosecutrix, hence, by, the accused. In aftermath, it appears that the sexual intercourse, as, became perpetrated, upon, the person, of, the prosecutrix, by the bail applicant, was, consensual, dehors, the, afore supervening events. Since, the bail applicant is in judicial custody, for, the, last 9 months, hence, the, present bail ::: Downloaded on - 03/01/2020 20:25:19 :::HCHP 7 application, is, allowed, and, the indulgence, of, bail, is, granted, to, the bail applicant, subject, to, compliance, .
with, the, following conditions, more so, when no evidence has become adduced, that, in, the, event, of, bail, being granted, to, the applicant, there, is, every likelihood, of, his fleeing, from, justice or tampering, with, the, prosecution evidence:-
(i) that the bail applicant shall furnish personal bond in the sum of Rs.50,000/- with one local surety in the like amount to the satisfaction of the learned Judicial Magistrate 1st Class, Theog;
(ii) that the bail applicant shall join the investigation, as and when required by the Investigating Agency, as also, he shall put his personal appearance on each and every date of hearing before the learned trial Court;
(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;::: Downloaded on - 03/01/2020 20:25:19 :::HCHP 8
(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 police;
7. With the aforesaid observations the present petition stands disposed of. It is, however, made clear that the findings recorded hereinabove will have no bearing on the merits of the case.
Dasti Copy.
r to
(Sureshwar Thakur)
30 th
December, 2019. Judge.
(jai)
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