Himachal Pradesh High Court
Ravi Kumar vs State Of Himachal Pradesh on 6 October, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2452 of 2023 Reserved on : 29.09.2023 Decided on : 06.10.2023 Ravi Kumar ...Applicant Versus State of Himachal Pradesh ...Respondent Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the Applicant : Mr. Jeevesh Sharma & Ms. Seema Azad, Advocates For the respondent : Mr. H.S. Rawat & Mr. Tejasvi Sharma, Additional Advocates General assisted by HC Kirpal Singh No.55, I.O. Police Station, Theog, District Shimla, H.P. Virender Singh, Judge.
ApplicantRavi Kumar has filed the present application under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.PC'), in case FIR No.51 of 2023, dated 13.03.2023, registered under Sections 376 & 506 of the Indian Penal Code, (hereinafter 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 referred to as the 'IPC'), read with Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, with Police Station Theog, District Shimla, H.P.
2. According to the applicant, he is innocent and has falsely been implicated, in the present case.
3. According to the applicant, he has nothing to do with the offences, for which, he has been arrested by the Police. The applicant has also pleaded that he is not having any criminal antecedents and nothing has been found, during the investigation, against him.
4. According to the applicant, investigation, in the present case, is complete and he is no longer required for investigation, in this case.
5. According to the applicant, after completion of the investigation, report under Section 173(2) Cr.PC, has been filed by the police and the case is now fixed for PWs on 5th December, 2023.
6. The applicant has also tried his luck before learned Additional Sessions Judge, Fast Track Special Court, (POCSO), Shimla, H.P., by moving the 3 application, under Section 439 Cr.P.C., which has been dismissed, vide order dated 15.06.2023.
7. On the basis of the above, Mr. Jeevesh Sharma, learned counsel appearing for the applicant, has also given certain undertakings on behalf of the applicant, for which, he is ready to abide by, in case, he is ordered to be released on bail.
8. When put to notice, the police has filed the status report, disclosing therein, that the mother of the child victim on 13.3.2023, had reported the matter to the police of Police Station, Theog, alleging therein that the child victim is 16 years of age and is studying in Government Senior Secondary School, 'X' (name withheld), in +1 Class. From 12.03.2023, the child victim was suffering from pain in stomach.
8.1. On inquiry, the child victim has disclosed to the complainant that on 6.3.2023, when she was on her way to school, Ravi, resident of Pundar Deha (applicant), met her and taken her towards forest and forcibly raped her. Thereafter, the applicant, according to the further version of the complainant, has threatened the child victim with 4 dire consequences, in case, she discloses this fact to anyone.
8.2 The complainant further got recorded in the complaint that she took her daughter to Doctor for her medical check up, where, she was advised to lodge the report.
9. On the basis of the above facts, the Police registered the case and the police machinery swung into motion.
10. In the medicolegal examination, the doctor of Civil Hospital, Theog, has given the following report:
"There are no marks suggestive of penetration/recent forceful penetration. However, the possibility cannot be ruled out. Final opinion will be given after forensic report.
11. Thereafter, the child victim was produced before the Court, for recording her statement, under Section 164 Cr.PC. On 14.2.2023, she has also identified the place, where, she was allegedly raped, by the accused on 6.3.2023, at about 11.30 a.m.
12. From the spot, used condom, two pieces of wrapper of the condom, along with control sample of soil, 5 grass and leaves, were taken into possession. Spot map was also prepared.
13. On 14.3.2023, at about 7.30 p.m., the accused (applicant) was arrested. He was also medicolegally examined. The doctor has opined that there is nothing to suggest that the person is not able to perform sexual intercourse.
14. During investigation, the documents, pertaining to the date of birth of the child victim, were obtained. As per those documents, her date of birth was found to be 17 th February, 2007. DNA Report and the report from SFSL, Junga have also been received.
15. After completion of the investigation, the police has filed the final report under Section 173(2) Cr.PC, against the accused (applicant). No other case has been found to be registered against the applicant.
16. Learned Special Judge, Shimla, has taken cognizance of the matter and there are 29 witnesses, out of which, two witnesses have been examined. The case is now fixed for 5th to 7th December, 2023, for recording the statements of prosecution witnesses. 6
17. Lastly, it has been apprehended, in the status report, that the applicant had developed the physical relations with the child victim and due to such act of the applicant, there is a lot of resentment in the area. Applicant is a very clever person, he may coerce the witnesses and may also cause harm to the complainant.
18. It has also been apprehended, in the status report, that in case, the applicant is ordered to be released on bail, his life would be in danger, in the hands of the complainant party, as well as, local residents.
19. As such, a prayer has been made to dismiss the application.
20. The age of the applicant has been pleaded, as 20 years and he is not having any criminal antecedents and in case, he is not released, on bail, he will come, in contact with the hardened criminals and such company, will adversely affect his future.
21. The case is now fixed for recording the statements of prosecution witnesses and as such, no useful purpose would be served, by keeping the applicant in judicial custody.
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22. Moreover, the applicant cannot be kept in the judicial custody for indefinite period, as, pretrial punishment is prohibited under the law. Punishment can only be imposed, after the full fledged trial.
23. The chances of conclusion of trial against the applicant, in near future, are not so bright, as, till date, only two witnesses, have been examined and the case is now fixed for recording the statements of prosecution witnesses on 5th to 7th December, 2023, that too, only six witnesses, have been summoned for these three dates.
24. It has rightly been argued by learned counsel for the applicant that for examining 29 witnesses, it will take sufficient long time, as such, no useful purpose would be served by keeping a young man of 20 years, in judicial custody, in the company of hardened criminals.
25. So far as the apprehension, which have been expressed by the prosecution, in the status report, for those apprehensions, reasonable conditions can be imposed, in case, the applicant is ordered to be released on bail.
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26. At the time of deciding the bail application, the Court should refrain from commenting upon the evidence, so collected, during the investigation of the case, as it would cause prejudice to the case of the prosecution or to the case of the accused.
27. No criminal history of the applicant has been mentioned in the status report nor has been argued by the learned Additional Advocate General.
28. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. The applicant is ordered to be released on bail in case FIR No.51 of 2023, dated 13.03.2023, under Section 376 & 506 IPC and Section 4 of the POCSO Act, registered with Police Station, Theog, District Shimla, H.P., on his furnishing personal bond in the sum of Rs.50,000/, with one surety in the like amount, to the satisfaction of learned trial Court.
29. This order of release, however, shall be subject to the following conditions, that :
"a) 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 9 prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) He shall not make any inducement, threat
or promises to any person acquainted
with the facts of the case so as to
dissuade them from disclosing such
facts to the Court or the Police Officer;
and
d) He shall not leave the territory of India without the prior permission of the Court"
30. Any of the observations made herein above shall not be taken as an expression of opinion on the merits of the case, as these observations are confined only to the disposal of the present bail application.
31. It is made clear that the respondentState is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated, by the applicant.
32. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Model Central Jail, Kanda, through email, with a direction to enter the date of grant of bail in the eprison software. 10
33. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Model Central Jail, Kanda is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, Model Central Jail, Kanda, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
( Virender Singh ) Judge October 06, 2023(ps) Digitally signed by RAJNI DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= RAJNI a8cebe955d82fa83f77f59dbe2b1b1f19db88b15bd 754658045e967bb7b7cbda, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 4798760d48b04a815c33901090aafe7ff1d5ce9a3 00dd6bf3b57c25d0170ca0d, CN=RAJNI Reason: I am the author of this document Location:
Date: 2023.10.07 11:34:17+05'30' Foxit PDF Reader Version: 2023.2.0