Himachal Pradesh High Court
Shashi Kumar vs State Of Himachal Pradesh on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 2283 of 2019
Reserved on : December 23 , 2019
Date of Decision: January 3 , 2020
Shashi Kumar ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. Bodh Raj Thakur and Mr. Subhash Chander, Advocates, for the petitioner. For the respondent : Mr. Ashok Sharma, Advocate General with M/s Shiv Pal Manhans & Nand Lal Thakur, Addl.AGs and Amit Dhuman, Dy.AG, for the respondent/State.
Anoop Chitkara, Judge.
For repeatedly indulging in coitus with his real Bhanji (niece), the petitioner, who is her Mama (Mother's brother), is under arrest, on being arraigned as an accused in FIR No.120 of 2019, dated Aug. 26, 2019, registered under Sections 376 of the Indian Penal Code, 1860 and under Section 6 of the Protection of Children from Sexual Offences Act, 2012, in the file of Police Station Badsar, Distt.
Hamirpur, H.P., disclosing non bailable offences, has come up 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 04/01/2020 20:27:39 :::HCHP 2before this Court under Section 439 of the Code of Criminal Procedure, seeking regular bail.
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2. Status report stands filed. I have seen the status report as well as the police file to the extent it was necessary for deciding the present petition, and the police file stands returned to the police official.
3. I have heard learned Counsel for the petitioner and the learned Additional Advocate General for the respondent-State.
FACTS
4. The gist of the First Information report and the Investigation is as follows:
(a) The victim was born on Aug. 11, 2004. After one year of her birth her mother left her with her brother. The family of her mother's brother comprised of her two unmarried sisters apart from her parents.
(b)When the victim was in Class-7 then her Maama, Shashi Kumar, petitioner herein, committed sexual intercourse with her. After that he kept on indulging in coitus with her on numerous occasions. During those days her Maama (petitioner) was unmarried. The victim could not pass her final examination and after that she moved to her house at Balh Rehre. She further stated that these days she studies in Class-10.
(c) On Jul. 7, 2019, she had gone to the house of her Maama (petitioner) at Bijhdi. Her Maama had married two ::: Downloaded on - 04/01/2020 20:27:39 :::HCHP 3 years before. His wife was pregnant and as such she stayed in a separate room. On Jul. 11, 2019, during night .
time, her Maama (petitioner) came to her room and committed sexual intercourse with her.
(d)The victim stated that she had her last mensuration cycle on Jun. 28, 2019, and after that she did not have menses. On Aug. 3, 2019, she returned to her home. After that she started having pain in her abdomen. On this her aunt (Tai) Smt. Taro Devi took her to a Doctor. After examination the Doctor conducted test for pregnancy which resulted positive. The said Doctor informed the Bangana police and after that the female police officials recorded her statement to the aforesaid effect leading to the registration of the present FIR.
(e)The police arrested the petitioner on Aug. 27, 2019 and got his DNA sample on FTA Card through Medical Officer.
(f) On Aug. 28, 2019, the police took the victim to Judicial Magistrate Ist Class, Court No. 2, Hamirpur where she made her statement under Section 164 CrPC.
(g)On Aug. 31, 2019 the Doctor preserved the sample from her foetus and handed it over to the police for DNA test.
(h)During investigation the police also took into possession the date of birth certificate of the prosecutrix according to which the victim was born on Aug. 11, 2004.
(i) The DAN report confirmed that the petitioner was the biological father of the foetus and the victim its biological mother.
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5. Despite the following positive points favouring the bail .
petitioner, given the gravity of the offence, the Court is not inclined to grant him bail.
(a) The petitioner is in judicial custody since 27.08.2019.
(b) The investigation in the case is complete and challan already stands filed in the Court of competent jurisdiction.
(c) The petitioner is a permanent resident of address mentioned in the memo of parties, therefore, his presence can always be secured.
GRAVITY OF OFFENCE:
6. In the year 2019 the victim as studying in Class-10 and was aged around 15 years. She stated that first time when her Maama had raped her she was studying in Class-7 and she had failed therein. It means that for the first time she was forced upon such act three - four years back. This would take her age to even less than 12 years when the offence was committed.
7. The petitioner who at the time of first occurrence was around 26 - 27 years of age was mature enough to understand that he was in a relationship of great trust qua the victim. He exploited her vulnerable position and satisfied his lust. Needless to say that the victim being less than 18 years of age could not have consented any sexual intercourse. In any eventuality coitus amounts to statutory ::: Downloaded on - 04/01/2020 20:27:39 :::HCHP 5 rape. In the above analysis, I am of the view that the petitioner is not entitled to bail.
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8. Learned counsel for the petitioner places reliance upon two decisions of a Coordinate Bench of this Court reported in Jagdish Chand vs. State of Himachal Pradesh, 2018 (2) Shim.LC 967 and Dinender Morya vs. State of Himachal Pradesh, 2018(2) Shim.LC
983.
9. There can be no doubt that in both the cases this Court had granted bail to the accused who were facing prosecution for indulging in coitus with minor girls. However, present case is clearly distinguishable from the facts of the judicial precedents on the ground that here the relationship of the victim with the petitioner is of Maama & Bhanji. The relationship of Maama is as pious as that of father.
10. Learned counsel for the petitioner submits that prior to this FIR the prosecutrix had filed a similar complaint against another person levelling similar charges and as such she is not a credible witness.
However, in the present FIR the victim has clarified that the person referred to did not indulge in coitus with her. Furthermore in the present case the result of the DNA test, which has crossed the stage of eclipse and accepted as best scientific evidence, implicates the petitioner.
::: Downloaded on - 04/01/2020 20:27:39 :::HCHP 611. Resultantly, the present petition is dismissed. However, the dismissal of this bail petition shall not come in the way of the .
petitioner filing subsequent bail petitions, before this Court.
12. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
Petition stands disposed of in the aforesaid terms.
r (Anoop Chitkara),
Judge.
January 3 , 2020 (PK)
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