Himachal Pradesh High Court
Vinod Kumar vs State Of Himachal Pradesh on 26 May, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1041 of 2023 .
Reserved on : 19.05.2023
Decided on : 26.05.2023
Vinod 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. Ashok K. Tyagi, Advocate.
For the respondent : Ms. Sharmila Patial, Additional Advocate General, Ms.Ayushi Negi & Mr. Rohit Sharma, Deputy Advocates General.
ASI Moti Lal, I.O., Police Station, Pachhad, District Sirmaur, is present along with record.
Virender Singh, Judge.
ApplicantVinod Kumar has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), for releasing him on bail, during the pendency of trial, in case FIR No.42 of 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/05/2023 20:42:07 :::CIS 22021, dated 24th June, 2021, registered with Police Station Pachhad, District Sirmaur, H.P., under Sections 376 and 506 .
of the Indian Penal Code (hereinafter referred to as the 'IPC'), Section 4 of the Prevention of Children from Sexual Offences Act (hereinafter referred to as the 'POCSO Act') and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the 'SC&ST Act').
2. According to the applicant, he has been arrested, in connection with the abovementioned FIR on 29th June, 2021. He has termed the entire story of the prosecution as concocted and pleaded that he has falsely been implicated, in this case.
3. Applicant has stated that he is an innocent person and a law abiding citizen and has nothing to do with the offences, for which, he has been arrested by the police, in this case.
4. Asserting the fact that he is an young man of 37 years and is in the custody for the last about two years, he has prayed that since the investigation, in the present case, is ::: Downloaded on - 29/05/2023 20:42:07 :::CIS 3 complete and nothing is to be recovered from him or at his instance, no fruitful purpose would be served by keeping him .
in judicial custody.
5. Applicant has also tried his luck before the learned Additional District & Sessions Judge, Fast Track Special Court (Rape/POCSO), Sirmaur at Nahan, H.P., by moving Bail Application No. 141BA/22 of 2021. The said bail application has been dismissed, vide order, dated 8th September, 2021.
6. Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.
7. Learned counsel appearing for the applicant has also drawn the attention of this Court towards the fact that the bail applications of the coaccused in the present FIR, have already been allowed. In this regard, the applicant has relied upon the decisions of this Court passed in Cr.MP(M) Nos.496, 508, 761 and 762 of 2023. On the basis of parity, the learned counsel appearing for the applicant has prayed that the ::: Downloaded on - 29/05/2023 20:42:07 :::CIS 4 applicant, who is a young man of 37 years, may kindly be released on bail, during the pendency of the trial.
.
8. It has also been submitted by learned counsel appearing for the applicant that the trial, in this case, is at the verge of completion. However, one of the accused, in this case, namely, Rattan Singh, has preferred CrMMO No. 848 of 2022, which is pending adjudication before this Court and the further proceedings in the trial Court, have been ordered to be stayed, vide order, dated 12th September, 2022.
9. On all these submissions, a prayer has been made to release the applicant on bail.
10. When put on notice, police filed the status report, disclosing therein that on 24th June, 2021, Medical Officer, Nahan Hospital had intimated the police about the admission of a girl, aged about 16 years, who was brought for treatment at Nahan Hospital, as, she was complaining stomach pain and was found pregnant.
10.1. On receipt of such information, ASI Moti Lal, alongwith LC Vandana, No. 681, reached at Nahan Hospital, where the child victim got recorded her statement, under ::: Downloaded on - 29/05/2023 20:42:07 :::CIS 5 Section 154 of CrPC, to the effect, that she was studying in 10th class in a Government Senior Secondary School. In the .
month of October, 2020, she used to go to graze her cattle in the jungle of Village Nagli, where one day, her calf went missing in the jungle and while, she was making search of her calf, then a labourer of resin contractor, who told his name as Bittu, met him and on seeing her alone, caught her hold. She raised alarm, but, in vain and said Bittu had made physical relations with her, without her consent and threatened her not to disclose about such illicit relation. She had seen said Bittu in the jungle first time and he had never met her again after having had physical relations with her in the jungle. During those days, she experienced irregular menses once or twice and later on her menses stopped. She was having no knowledge about the effect of stoppage of menses. She was also having thyroid problem, due to which her belly used to protrude out. When her stomach protrude, she and her family members thought that it was on account of thyroid malfunctioning.
::: Downloaded on - 29/05/2023 20:42:07 :::CIS 610.2. On 16th June, 2021, her mother had brought her to a private doctor at Nahan and after telling about her swelling, .
took the medicines for her. She took medicines for 23 days. On feeling pain in her stomach, she was again brought to Nahan hospital, where doctor had given medicines to her and asked her to get done ultrasound. After taking medicines, they went to the house of her maternal uncle, where in the night, she again felt stomach pain and thereafter, her mother and maternal aunt brought her to Government Hospital, Nahan, where the doctor after having checked up, told that she was pregnant.
10.3. She has also stated that in the month of October, 2020, Bittu, resident of Banah Ki Sair, has forcibly made physical relations with her and no one except him had made physical relations with her and she was pregnant on account of making physical relation by the aforesaid Bittu. On the said statement of victim, the FIR in issue, dated 24 th June, 2021 was registered under Section 376 of IPC and Section 4 of POCSO Act. The victim had given birth to a female child in the night of 24th June, 2021.
::: Downloaded on - 29/05/2023 20:42:07 :::CIS 710.4. In her supplementary statement, the victim disclosed that said Bittu was, in fact, resident of towards .
'Jaman Ki Sair' and not 'Banah Ki Sair' and beside said Bittu, one Kishan Singh, a neighbour had also made physical relations with her.
10.5. On 24th June, 2021, accused persons Dev Swaroop @ Bittu and Kishan Singh were arrested and they were got medically examined. The samples and exhibits were preserved and their MLCs were obtained. The blood sample of infant was also preserved for DNA profiling.
10.6. On 28th June, 2021, the statement of victim was also got recorded, under Section 164 CrPC, before JMIC, Rajgarh. In her statement under Section 164 CrPC, she had disclosed that accused persons, Vicky @ Ravi, Vinod (applicant), Rattan, Kishan Singh and Bittu had made physical relations with her and exploited her sexually.
10.7. On 29th June, 2021, the accused persons, namely, Rattan Singh, Vicky @ Ravi and Vinod Kumar (applicant) were also interrogated and arrested. They were also got medico legally examined at CH, Sarahan and samples and ::: Downloaded on - 29/05/2023 20:42:07 :::CIS 8 exhibits were preserved. The blood samples of the victim, infant/newly born baby of child victim and accused persons .
were sent for DNA profiling to SFSL, Junga, from where, report was received, which establishes victim as the biological mother of infant, while accused Vinod Kumar (applicant) as the biological father of the infant.
10.8. During investigation, victim was found belonging to Scheduled Caste, while accused persons Dev Swaroop @ Bittu and Vinod Kumar (applicant) were found belonging to General Caste and Section 3(2)(v) of SC&ST Act was also charged against Vinod (applicant) and Dev Swaroop @ Bittu.
After completion of the investigation, police report under Sections 376 and 506 of IPC, Section 4 of POCSO Act and Section 3(2)(v) of SC&ST Act against accused Dev Swaroop @ Bittu and Vinod (applicant) and under Sections 376 & 506 of IPC and Section 4 of POCSO Act against accused persons Kishan Singh, Vicky @ Ravi and Rattan Singh filed before the Court.
10.9. The charges against accused persons Vinod (applicant) and Dev Swaroop @ Bittu have been framed, under ::: Downloaded on - 29/05/2023 20:42:07 :::CIS 9 Sections 376 of IPC, Section 6 of POCSO Act and Section 3(2)
(v) of SC&ST Act and against accused persons Kishan Singh, .
Vicky @ Ravi and Rattan Singh, under Sections 376 of IPC, Section 6 of POCSO Act on 15 th September, 2021. Statement of the victim, during trial, has also been recorded on 19 th October, 2021.
11. Accused, in this case, has been arrested in very serious offences and as per the report of FSL, the applicant has been found to be biological father of the infant, born from the womb of the child victim. It is the judicial discretion of the learned trial Court to consider the authenticity of the DNA report during the trial. Moreover, at the time of deciding the bail application, detailed discussion of the evidence, so collected by the prosecution, should be avoided by the court, as, it would cause prejudice to the prosecution, as well as, to the accused.
12. Considering all these facts, especially the fact that in DNA report, finger has been raised against the applicant, releasing him on bail would give a wrong signal to the society that after doing such heinous offence, the applicant is moving ::: Downloaded on - 29/05/2023 20:42:07 :::CIS 10 freely in the society. Moreover, such release would also encourage other persons to commit such type of heinous .
offences.
13. So far as the arguments of the learned counsel appearing for the applicant, qua seeking the relief of bail of the applicant, on the ground of parity is concerned, to the considered opinion of this Court, considering the role played by the applicant, in the commission of the alleged offence, this Court is of the view that the rule of parity does not apply, in the present case. Meaning of the term 'parity' is the state of condition being equal. In other words, it can be said that the role played by the persons, who have been released on bail, was similar to the role allegedly played by the applicant in the commission of the alleged offence.
13. Hon'ble Apex Court in Ramesh Bhavan Rathod versus Vishanbhai Hirabhai Makwana (Koli) & Another, (2021) 6 Supreme Court Cases, 230, has discussed in detail regarding the principle of parity. Relevant portion of the judgment reads, as under: ::: Downloaded on - 29/05/2023 20:42:07 :::CIS 11 "26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its .
two orders both dated 21.12.2020, the High Court granted bail to Pravin Koli (A10) and Kheta Parbat Koli (A15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A13) to whom bail was granted on 22.10.2020 on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A
10), Kheta (A15) and Sidhdhrajsinh (A13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
14. Considering all these facts, the applicant is not entitled to the relief of bail. As such, the bail application is dismissed.
::: Downloaded on - 29/05/2023 20:42:07 :::CIS 1215. Any of the observations, made hereinabove, 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.
( Virender Singh ) Judge May 26, 2023(ps) ::: Downloaded on - 29/05/2023 20:42:07 :::CIS