Himachal Pradesh High Court
Dhudhveer vs State Of Himachal Pradesh on 13 October, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2565 of 2023 Reserved on : 12.10.2023 Decided on : 13.10.2023 Dhudhveer ...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. Janmajai Chauhan, Advocate. For the respondent : Mr. Tejasvi Sharma, Additional Advocate General with Ms. Leena Guleria, Deputy Advocate General assisted by ASI Moti Lal, Police Station, Renuka Ji, District Sirmaur, H.P. Virender Singh, Judge.
Applicant-Dhudhveer has sought his release on bail, during the pendency of trial, in case FIR No.03 of 2023, dated 15.01.2023, registered under Sections 363, 376 of the Indian Penal Code, (hereinafter referred to as the 'IPC'), read with Section 4 of the Protection of Children from Sexual 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 Offences (POCSO) Act, with Police Station Renuka Ji, District Sirmaur, H.P.
2. According to the applicant, he is innocent and has falsely been implicated, in the present case, without any substance, in the allegations, levelled against him.
3. Applicant has sought the relief of bail, by highlighting the pace of the trial. According to him, out of 25 witnesses, cited by the prosecution, only two witnesses have been examined.
4. According to the applicant, chances of conclusion of trial against him, in the near future, are not so bright, as such, no useful purpose would be served, by keeping him, in the judicial custody, for indefinite period.
5. 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.
6. The applicant has also tried his luck before learned Additional Sessions Judge, Fast Track Special Court, (Rape/POCSO), Sirmaur District at Nahan, H.P., by moving the application, under Section 439 of the 3 Code of Criminal Procedure (hereinafter referred to as the Cr.P.C'), which has been dismissed, vide order dated 13.07.2023.
7. On the basis of the above facts, Mr. Janmajai Chauhan, learned counsel appearing for the applicant, has prayed that the application, may kindly be allowed and the applicant may kindly be released on bail, during the pendency of the trial.
8. When put to notice, the police has filed the status report, disclosing therein that father of the child victim has moved a complaint before the Police on 15.1.2023, mentioning therein that he is mason by profession. He has been blessed with two daughters and one son. The elder one is the child victim, who could not pass her matriculation.
8.1. As per the complainant, a few days ago, the wife of the complainant had gone to Dadahu, and purchased shoes for the child victim. Since, the shoes, so purchased, were not found to be fit, as such, the child victim had gone to the market to exchange the same on 13.01.2023, but, she did not return back. Efforts, to search her, were made, but, she could not be found.
48.2. According to the complainant, in their village, one nomad is having his Dera, where, he used to keep his herd.
8.3. On 14.1.2023, the wife of the complainant was informed, by Baldev Singh, on phone that one of his servants, namely Dhudhveer, is missing from 13.1.2023. 8.4. On 14.1.2023, a phone call was received by the wife of the complainant and the caller was the child victim, who has disclosed that she has solemnized marriage. 8.5. Thereafter, efforts were made to contact the child victim, but, no one had picked up the phone. The complainant has also mentioned, in the complaint, that his daughter is minor and someone has enticed her away. Therefore, action be taken.
9. On the basis of the above facts, the Police registered the FIR and the criminal machinery swung into motion.
10. On 15.1.2023, the statements of the witnesses were recorded, under Section 161 Cr.PC. The documentary evidence, with regard to the age of the child victim, was 5 obtained, according to which, her date of birth is 21.05.2007.
11. It has been mentioned in the status report that the location of the mobile phone was ascertained, the same was found to be at Parola, Uttarakhand, upon which, a team was constituted on 16.1.2023. Accused was found in Parola market, Uttarkashi, along with the child victim. Child victim was identified by her uncle and her custody was entrusted to her uncle.
12. On 16.1.2023, during the night time, complainant, along with his wife and the child victim, appeared before the Police at Police Station, Renukaji, where statement of child victim, was recorded under Section 161 Cr.PC, in the presence of her mother, in which, she has alleged that the applicant had raped her, against her will.
13. On the basis of the above facts, Section 376 IPC and Section 4 of the POCSO Act, were also added, in the FIR.
14. Accused was arrested on 16.1.2023. He was medicolegally examined. The child victim was also medico legally examined.
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15. After completion of the investigation, report under Section 173(2) Cr.PC, was submitted, in the Court.
16. The charges have been framed and the case is now fixed for recording of the statements of prosecution witnesses on 6.12.2023. Out of 19 witnesses, 2 witnesses have been examined. The accused is stated to be in judicial custody, since 19.1.2023.
17. On the basis of the above facts, a prayer has been made to dismiss the application.
18. Learned counsel appearing for the applicant has also placed on record the photocopy of the statement of the child victim, as well as, her father. The child victim, admittedly, has not supported the case of the prosecution. The statement of the child victim was also recorded under Section 164 Cr.PC, in which, she has also not alleged anything against the applicant.
19. The evidentiary value of the hostile witnesses has to be considered, by the learned trial Court, at the time of trial, however, considering the pace of the trial, this Court is of the view that the chances of conclusion of trial against the applicant, in near future, are not so bright, as out of 19 witnesses, only 2 witnesses have been examined. 7
20. The applicant is young man of about 25 years and keeping him in the judicial custody, for indefinite period, that too, in the company hardened criminals, 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.
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. Even otherwise, no apprehension has been expressed by the Police, in the status report, as to why, the relief of bail, be not granted to the applicant.
24. 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.03 of 2023, dated 15.01.2023, under Section 363, 376 IPC and Section 4 of the POCSO Act, registered with Police Station, Renukaji, District Sirmaur, H.P., on his furnishing personal bond in 8 the sum of Rs.50,000/, with one surety in the like amount, to the satisfaction of learned trial Court.
25. 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 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"
26. 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. 9
27. 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.
28. The Registry is directed to forward a soft copy of the bail order to the Superintendent Jail, Model Central Jail, Nahan, through email, with a direction to enter the date of grant of bail in the eprison software.
29. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent Jail, Model Central Jail, Nahan is directed to inform this fact to the Secretary, DLSA, Sirmaur at Nahan. The Superintendent Jail, Model Central Jail, Nahan, 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 13, 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 have reviewed this document Location:
Date: 2023.10.13 17:28:40+05'30' Foxit PDF Reader Version: 2023.2.0