Himachal Pradesh High Court
Kuldeep vs State Of H.P on 21 September, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No. 2243 of 2023 Reserved on : 15.9.2023 .
Decided on : 21.9.2023 Kuldeep ... Applicant Versus State of H.P. ...Respondent of _____________________________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? _____________________________________________________________ rt For the Petitioner : Mr. H.S. Rangra, Advocate.
For the Respondent : Mr. Tejasvi Sharma, Addl. A.G. with Ms. Leena Guleria, Dy. A.G. Virender Singh, Judge Applicant- Kuldeep has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), for releasing him on bail, during the pendency of trial, in case FIR No. 24 of 2023, dated 16.7.2023, registered with Women Police Station, Sadar, District Mandi, under Section 376 of the Indian Penal Code, (hereinafter referred to as 'the IPC), read with Section ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 2 6 of Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act').
2. According to the applicant, he is an innocent .
person and has falsely been implicated, in this case.
According to him, he has not committed any offence, for which, he has been arrested by the police, in this of case.
3. The investigation, in the present case, is stated rt to be complete. According to him, no useful purpose would be served by keeping him in judicial custody.
4. It is the further case of the applicant that during investigation, Police had obtained the blood samples for conducting DNA of the child victim to find out as to who is the biological father of the newly born child, but, in the DNA report, nothing has been mentioned, against the applicant.
5. The applicant has tried his luck by moving an application, bearing No. 264 of 2023, before the Court of learned Special Judge, (POCSO), Mandi, District Mandi. However, his bail application was dismissed, ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 3 vide order dated 24.8.2023. In the bail application, it has been mentioned that the bail application was withdrawn by the applicant, but, perusal of the order .
dated 24.8.2023 shows that the same has been decided on merit.
6. On the basis of above facts, a prayer has been of made to allow the application.
7. When put to notice, the police has filed the rt status report, disclosing therein, that on 16.7.2023, Honorary ASI Naresh Kumar has informed the Police of Women Police Station, Mandi, disclosing therein that the Medical Officer, Mandi has disclosed to him that a child victim has come to Zonal Hospital, Mandi for treatment. She seems to be minor and has given birth to a child.
7.1 On the said information, the Police reached the Zonal Hospital, Mandi, in order to verify the said fact.
At the spot, the child victim was found to be admitted in Gynae Labour Room. Her mother was with her. She has moved the complaint, before the Police, disclosing ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 4 therein that the date of birth of the child victim was 10.10.2005 and she has completed her education upto 12th class.
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7.2 According to the complainant, her daughter felt pain in her stomach. In order to take medicines for the said ailment, the complainant took the child victim of to the hospital. After prescribing the medicines, the Doctor asked them to return to their home. But, in rt midnight, the child victim suffered severe pain in her stomach. She was again taken to hospital, where she gave birth to a male child, at 3: 00 a.m. Despite repeated inquiry, the child victim did not disclose about the father of the child.
7.3 Lastly, she has prayed that action be taken accordingly.
7.4 On the basis of above facts, Police registered FIR in question, under Section 376 of the IPC read with Section 6 of the POCSO Act.
8. During investigation, on 16.7.2023, blood samples of the child victim, as well as, her newly born ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 5 child were obtained and preserved, for DNA profiling.
On 17.7.2023, medical opinion from the Doctors was obtained, upon which, the Doctors declared the child .
victim to be fit to make statement. Consequently, her statement, under Section 164 Cr. P.C., was got recorded.
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9. On 20.7.2023, on the demarcation of the child victim, the spot map was prepared. She has made rt statement, under Section 161 Cr. P.C., disclosing that the applicant had forcibly ravished her about 7-8 months ago, which resulted into her pregnancy.
10. On 26.7.2023, the applicant was arrested. He was medico-legally examined and the physical evidence, so collected, was sent for analysis. Sample for DNA profiling was forwarded on 23.7.2023 and the report has been received. The relevant portion of the report is reproduced as under:
"On the basis of the analysis performed on the above mentioned exhibits, it is concluded that:-
(i). A human female DNA profile identified in Exhibit-3 (blood sample on FTA card, victim) ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 6 showed match with one of two alleles in the genotype obtained at all the 23 Autosomal STR loci examined from Exhibit-1 (blood sample on FTA card, baby of victim), which was consistent with .
the victim as biological mother of the baby.
(ii) A human male DNA profile identified in Exhibit- 7 (blood sample on FTA card, Kuldeep) did not match with one of two alleles in the genotype obtained at all the 23 Autosomal STR loci examined from Exhibit - 1 (blood sample on FTA of card, baby of victim), which was inconsistent with Kuldeep as biological father of the baby of victim."
11. rt It is the specific case of the Police that in view of the report of DNA profiling, blood sample of accused did not match with the blood sample of child victim.
12. On 11.8.2023, statement of child victim was again recorded. On the basis of statement, recorded under Sections 164/161 Cr. P.C., Shali Ram and Bhupender Kumar were also associated in the investigation. Blood samples of Bhupender Kumar were also obtained and the same were sent for DNA profiling. The report has been received, which is reproduced as under:
::: Downloaded on - 21/09/2023 20:35:48 :::CIS 7Report no. 1462 RFSL DNA-DNA purified from Exhibit- 1(blood sample on FTA card, Shali Ram) and Exhibit-2(blood sample on FTA card, Bhupender) showed amplification at 23 Autosomal STR loci and four gender determining markers using Perplex Fusion 6C System PCR Amplification Kit.
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Opinion:
On the basis of the analysis performed on the above mentioned exhibits, it is concluded that:-
(i) A human male DNA profile identified in Exhibit-
1(blood sample on FTA card, Shali Ram) did not match with one of two alleles in the genotype obtained at all the 23 Autosomal STR loci examined from Exhibit-1 (blood sample on FTA of card, baby of victim) of related report no. 1331 RFSL DNA (117) 2023, which was inconsistent with the Shali Ram as biological father of the baby of victim.
(ii) A human male DNA profile identified in Exhibit rt
-2 (blood sample on FTA card, Bhupender) showed match with one of two alleles in the genotype obtained at all the 23 Autosomal STR loci examined from Exhibit -1 (blood sample on FTA card, baby of victim) of related report no.1331 RFSL DNA (117)2023, which was consistent with Bhupender as biological father of the baby of victim."
13. It is the further case of the Police that on the basis of statement made by the child victim, under Section 164 Cr. P.C., on 11.8.2023, father and brother of the child victim were also associated in the investigation and their blood samples were obtained and same were sent for DNA profiling to RFSL, Mandi.
As per the report, DNA of the child victim matched with the DNA of Bhupender Kumar.
::: Downloaded on - 21/09/2023 20:35:48 :::CIS 814. Consequently, on 24.8.2023, he was produced before the Magistrate, Juvenile Justice Board, Mandi, as his age was found to be 13 years and eight months.
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Investigation is stated to be complete and the Challan is stated to have been filed in the Competent Court of law.
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15. It has been apprehended that in case the applicant is released on bail, he may coerce the child rt victim and witnesses and threaten them not to depose against him and in case, he is released on bail, he may not be available for trial.
16. On the basis above, a prayer has been made to dismiss the application.
17. The role allegedly played by the applicant will be proved during the course of the trial. The application cannot be dismissed as a matter of punishment, as, pre-trial punishment is prohibited under the law.
18. The investigation, in the present case, is complete and the same is demonstrated from the ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 9 stand of the police, as, taken in the status report, that the Challan has been filed in the competent Court of law.
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19. So far as the much relied document of the applicant, i.e. DNA report, is concerned, the authenticity of the said document will be judged by the of learned trial Court.
20. It is no longer res-integra that at the time of rt deciding the bail-application, detailed discussion about the evidence, so collected by the prosecution, during the investigation, should be avoided, as it would cause prejudice to the case of the applicant, as well as, to the case of the prosecution.
21. The chances of commencement and conclusion of trial, against the applicant are not so bright, as such no useful purpose would be served, by keeping him judicial custody, for indefinite period.
22. So far as the apprehensions, which have been expressed by the Police in the status report, are concerned, those apprehensions are not sufficient to ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 10 decline the relief to the applicant, for which, he is otherwise entitled to, as, for those apprehensions, reasonable conditions can be imposed, in case, the .
applicant is ordered to be released on bail.
23. The age of the applicant has been pleaded in the application, as 24 years. At the young age of 24 of years, keeping the applicant in judicial custody, that too, in the company of the hardened criminals, would rt certainly affect the future of the applicant, adversely.
24. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
25. The applicant is ordered to be released on bail in case FIR No. 24 of 2023, dated 16.7.2023, registered with Women Police Station, Sadar, District Mandi, under Section 376 of the IPC read with Section 6 of POCSO Act, on his furnishing personal bail bond, in the sum of ₹50,000/-, with one surety of the like amount, to the satisfaction of learned trial Court. This order, however, shall be subject to the following ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 11 conditions:
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 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 of 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 rt
d) He shall not leave the territory of India without the prior permission of the Court.
26. 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.
27. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.
28. The Registry is directed to forward a soft copy of the bail order to the Superintendent concerned jail ::: Downloaded on - 21/09/2023 20:35:48 :::CIS 12 through email, with a direction to enter the date of grant of bail in the e-prison software.
29. Record be returned to the quarter concerned.
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(Virender Singh) Judge of September 21, 2023 Kalpana rt ::: Downloaded on - 21/09/2023 20:35:48 :::CIS