Himachal Pradesh High Court
Bhuvnesh Kumar @ Rishu vs State Of Himachal Pradesh on 20 November, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1883 of 2019 Decided on: 20th November, 2019 .
Bhuvnesh Kumar @ Rishu ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioner: Mr. H.S. Rangra, Advocate.
For the respondent/State: Mr. P.K. Bhatti, Additional Advocate General, with Mr. Raju Ram Rahi and Mr. Gaurav r Sharma, Deputy Advocates General.
ASI Jagat Ram, Incharge, Police Station Sundernagar, District Mandi, H.P. ___________________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 64 of 2019, dated 18.03.2019, under Section 376, 452, 506 IPC and Section 6 of POCSO Act, registered in Police Station Sundernagar, District Mandi, H.P.
2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 20/11/2019 20:25:12 :::HCHP 2served by keeping him behind the bars for an unlimited period, so she be released on bail.
3. Police report stands filed. As per the prosecution story, on .
18.03.2019, statement of the prosecutrix (name withheld) was recorded.
The prosecutrix stated that she not pass 10th class, so she left the school.
She used to live in her house and on 18.03.2019 her mother had gone to the house of her nani. She has further stated that her younger brother had gone to school. At about 11 a.m., when she was resting in a room, the petitioner came and inquired about her mother. The petitioner committed forcibly intercourse with the prosecutrix and threatened her that in case she divulges the incident to anyone she would be eliminated. Thereafter, the prosecutrix weepingly went to the house of Shri Tulsi Ram and divulged the incident to her Bhabhi, Smt. Ghani Devi. Upon the complaint of the prosecutrix, police registered a case and the investigation ensued. The prosecutrix was medically examined and the Medical Officer opined that the sexual intercourse took place. On 18.03.2019 the petitioner was arrested.
Police visited the place of incident and prepared the spot map. The spot was photographed and videographed. Police made relevant recoveries and the statements of the witnesses were recorded. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Record qua the date of birth of the prosecutrix was procured and she was found to be 17 years and nine months at the time of commission of the offence. As per the report of ::: Downloaded on - 20/11/2019 20:25:12 :::HCHP 3 Chemical Pscheologust, the IQ and DQ of the prosecutrix is corresponding to the child aged 11/12 years. After completion of investigation, challan was presented in the learned Trial Court on 15.05.2019 and now the case is .
listed for consideration on charge on 09.12.2019. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner committed a serious crime. The trial is in initial stage and there is possibility that in case at this stage if the petitioner is enlarged on bail, he may flee from justice. The petitioner can also tamper with the prosecution evidence, so his application be dismissed.
4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully.
5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is permanent resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. The petitioner is ready and willing to abide by the terms and conditions of bail, in case granted. He has further argued that keeping in view the age of the petitioner, who is only 21 years of age, and the overall aspects of the case, the petition may be allowed and the petitioner be enlarged on bail.
::: Downloaded on - 20/11/2019 20:25:12 :::HCHP 4Conversely, the learned Additional Advocate General has argued that the petitioner has committed a heinous offence, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may .
also flee from justice. He has further argued that petitioner could jump over the bail, in case granted. He has prayed that the bail application of the petitioner be dismissed.
6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, keeping in view the fact that challan stands presented in the learned Trial Court and the custody of the petitioner is not at all required by the police, so the application be allowed and the petitioner be enlarged on bail.
7. At this stage, considering the age of the petitioner, who is only 21 years of age, and that of the prosecutrix, who is 17 years and nine months, the nature of the injuries on the person of the prosecutrix, the statement of the prosecutrix under Section 164 Cr.P.C, the fact that the custody of the petitioner is not at all required by the police, as the investigation is complete and the challan stands presented in the Court, nothing is to be recovered from the petitioner, he is permanent resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, he is ready and willing to abide by the terms and conditions of bail, if granted, the fact that the petitioner cannot be kept behind the bars for an unlimited period, especially when his ::: Downloaded on - 20/11/2019 20:25:12 :::HCHP 5 custody is not at all required by the police and also considering the overall facts, which have come on record, and without discussing the same at this stage, this Court finds that the present is a fit case where the judicial .
discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in case FIR No. 64 of 2019, dated 18.03.2019, under Section 376, 452, 506 IPC and Section 6 of POCSO Act, registered in Police Station Sundernagar, District Mandi, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of `25,000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of the learned Trial Court.
The bail is granted subject to the following conditions:
(i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required.
(ii) That the petitioner will not leave India without prior permission of the Court.
(iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court.
8. In view of the above, the petition is disposed of.
Copy dasti.
(Chander Bhusan Barowalia)
20th November, 2019 Judge
(virender)
::: Downloaded on - 20/11/2019 20:25:12 :::HCHP