Himachal Pradesh High Court
Sunny Thakur vs The State Of Himachal Pradesh on 28 September, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28th DAY OF SEPTEMBER 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CRIMINAL MISC. PETITION (MAIN) No. 1765 of 2021
Between:-
SUNNY THAKUR
AGED ABOUT 23 YEARS,
S/O SHRI DURGA SINGH,
R/O VILLAGE TIHRI,
TEHSIL KHUNDIAN,
DISTRICT KANGRA (HP)
......PETITIONER
(BY SH. K.S. BANYAL, SENIOR
ADVOCATE WITH SH. VIJENDER
KATOCH, ADVOCATE)
AND
THE STATE OF HIMACHAL PRADESH
......RESPONDENT
(BY MS. RITTA GOSWAMI, ADDITIONAL ADVOCATE
GENERAL WITH MS. SEEMA SHARMA, DEPUTY
ADVOCATE GENERAL AND MR. SHRIYEK SHARDA,
SENIOR ASSISTANT ADVOCATE GENERAL
SI PIAR SINGH, POLICE STATION KHUNDIAN,
DISTRICT KANGRA, PRESENT IN PERSON
ALONGWITH RECORD)
This petition coming on for orders this day, the Court
passed the following:
ORDER
The petitioner is co-accused in FIR No.35/2021, registered on 03.06.2021, under Sections 376 & 506 of the ::: Downloaded on - 31/01/2022 23:08:30 :::CIS 2 Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act') at Police Station Khundian, District Kangra, Himachal .
Pradesh.
The petitioner had initially moved for grant of anticipatory bail before the learned Sessions Judge, District Kangra at Dharamshala. Ad-interim bail was granted to him on 08.06.2021. He did not co-operate with the Investigating Agency pursuant to the order passed by the learned Sessions Judge, whereafter on 11.06.2021, his bail petition was dismissed. Petitioner was arrested by the police on 13.06.2021. His regular bail application has been dismissed by the learned Special Judge, Fast Track Court (under POCSO Act), District Kangra at Dharamshala, vide order dated 27.08.2021. By means of the instant petition, the petitioner seeks his enlargement on regular bail.
2. I have heard learned Senior Counsel for the petitioner, learned Senior Assistant Advocate General for the respondent-State and have also gone through the status report as well as the record produced by the respondent-
State.
3. Gist of the prosecution case is that:-
::: Downloaded on - 31/01/2022 23:08:30 :::CIS 33(i). On 03.06.2021, Police Station Khundian received a telephonic information from Child Helpline Kangra about sexual and mental harassment of the .
prosecutrix in the hands of her stepfather. On receipt of this information, the investigation was carried out.
3(ii). During investigation, statement of the prosecutrix was recorded under Section 154 of the Code of Criminal Procedure (in short 'Cr.P.C.'). She stated that she was matriculate. Around 16 years ago, when she was six months old, her mother Meena Devi solemnized a marriage with Mohinder Singh S/o late Sh. Shankar Dass, resident of Village Kohlari, Post Office Tihri, Tehsil Khundian, District Kangra. She alongwith her mother started residing in Village Kohlari. Two sons, namely Suresh Kumar and Vinod Kumar, were born to her mother from this wedlock.
Her mother left the matrimonial home around 12/13 years ago and solemnized another marriage in the State of Haryana. She (prosecutrix) continued to reside with her stepfather Mohinder Singh, stepbrothers Suresh Kumar & Vinod Kumar and step-grandmother Brahmi Devi. Her stepfather Mohinder Singh started abusing and beating her.
He also indulged in obscene acts with her. Feeling ::: Downloaded on - 31/01/2022 23:08:30 :::CIS 4 embarrassed, ashamed and threatened, she kept quiet and did not disclose these incidents to anyone.
On 01.06.2021 at around 2:30 pm, while she .
was grazing cattle in the fields, her stepfather came, dragged her towards the trees and raped her there. He threatened her of dire consequences in case of her disclosing the incident to anyone. Frightened, she did not go to her home and spent the night in an abandoned building belonging to her paternal uncle (brother of her stepfather). On 03.06.2021, she called Child Helpline and narrated the incident.
On the basis of the above statement, FIR was registered under Sections 376 & 506 IPC and Section 6 of the POCSO Act.
3(iii). Accused-Mohinder Singh, i.e. stepfather of the prosecutrix, was arrested on 03.06.2021. The prosecutrix was medically examined. Her MLC obtained on 03.06.2021 reported that "There is no evidence of any recent injury mark over body and but possibility of sexual intercourse cannot be ruled out. Final opinion will be given after reports of forensic examination." Statements of witnesses under Section 161 Cr.P.C. were also recorded.::: Downloaded on - 31/01/2022 23:08:30 :::CIS 5
3(iv). Statement of prosecutrix was recorded under Section 164 Cr.P.C. on 04.06.2021. She stated that she was raped by her stepfather. She also stated that one Govind .
Rana S/o Sh. Babu Ram and another man Sunny Thakur (bail petitioner) S/o Sh. Durga Dass, both residents of Village Kohlari, Post Office Tihri, Tehsil Khundian, District Kangra, had also ravished and sexually exploited her about six months ago. Govind Ram and Sunny Thakur (present bail petitioner) are stated to be the sons of brothers of accused Mohinder Singh.
Statement of the prosecutrix was recorded under Section 161 Cr.P.C. on 04.06.2021. She described therein her complete story implicating all the three accused, i.e. Mohinder Singh, Govind Ram and the bail petitioner-
Sunny Thakur.
3(v). Co-accused Govind Rana was arrested on 05.06.2021. The same day, the prosecutrix identified the places, where the co-accused and the petitioner had raped her. Statements of co-accused Mohinder Singh and Govind Rana were recorded under Section 27 of the Indian Evidence Act. They identified separate places, where the prosecutrix was raped by them.::: Downloaded on - 31/01/2022 23:08:30 :::CIS 6
3(vi). As per the status report, following criminal cases were registered against co-accused Govind Rana:-
1. FIR No.27/2019, under Sections 435, 323 & 504 IPC.
2. FIR No.27/2018, under Sections 341, 504, 506 & 34 .
IPC.
3. FIR No.27/2019, under Sections 452, 323, 504, 506 & 34 IPC.
4. FIR No.101/2019, dated 08.12.2019, under Section 3 of the PDP Act and Sections 506 & 34 IPC.
5. FIR No.56/2020, dated 18.06.2020, under Sections 341, 323, 504, 325 & 34 IPC.
6. FIR No.87/2020, under Sections 452, 323, 504, 506 & 34 IPC and Section 3(1)(5) of SC&ST Act.
FIR No.101/2019 under Section 3 of the Prevention of Damage to Public Property Act, 1984 was registered against the co-accused Mohinder Singh.
3(vii). Co-accused Sunny Thakur-the bail petitioner was granted ad-interim bail by the learned Sessions Judge, District Kangra on 08.06.2021. As per status report, he though subsequently joined the investigations, but did not co-operate with the Investigating Agency. His bail application was dismissed by the learned Sessions Judge on 11.06.2021. As per the status report, the petitioner absconded after the dismissal of his bail petition. The Investigating Agency could arrest him only on 13.06.2021.
3(viii). In his statement recorded under Section 27 of the Indian Evidence Act, the petitioner statedly identified ::: Downloaded on - 31/01/2022 23:08:30 :::CIS 7 the places, where he had raped the prosecutrix. According to the status report, following criminal cases registered against the petitioner are pending consideration:-
.
1. FIR No.75/2016, dated 19.12.2016, under Sections 341, 323, 325 & 201 IPC.
2. FIR No.13/2017, dated 28.01.2017, under Sections 341, 504, 506 & 34 IPC.
3. FIR No.27/2018, dated 17.05.2018, under Sections 341, 323, 504, 506 & 34 IPC.
4. FIR No.27/2019, dated 26.03.2019, under Sections 452, 323, 504, 506 & 34 IPC.
5. FIR No.94/2019, dated 02.11.2019, under Sections 341, 323, 504, 506 & 34 IPC.
6. FIR No.101/2019, dated 08.12.2019, under Section 3 of the PDP Act and Sections 506 & 34 IPC.
7. FIR No.87/2020, under Sections 452, 323, 504, 506 & 34 IPC and Section 3(1)(S) of SC&ST Act.
3(ix). During investigations, date of birth of the prosecutrix was ascertained as 05.09.2004. As per status report, RFSL, Dharamshala, in its report, has, inter alia, recorded that 'A mixed autosomal STR DNA profile was obtained from exhibit-3 (salwar Shivani Devi) from which two components could be identified. Out of these two components, one component pertains to a male which showed match with the DNA profile obtained from exhibit-7 (blood sample, Mahinder Singh) while the second component ::: Downloaded on - 31/01/2022 23:08:30 :::CIS 8 showed match with the DNA profile obtained from exhibit-4 (blood sample of Shivani Devi).'
4. Learned Senior Counsel for the petitioner .
contended that the petitioner has been falsely implicated with the alleged offences. The prosecutrix had not disclosed the name of the petitioner in her statement, on the basis of which, the FIR was registered on 03.06.2021. Petitioner was named by her in her statement recorded under Section 164 Cr.P.C. on 04.06.2021. There is no evidence against the petitioner for the commission of the offences alleged against him. Learned Senior Counsel further submitted that in case of his enlargement on bail, the petitioner will not influence the prosecution witnesses or tamper the prosecution evidence and will abide by all the terms and conditions, which may be imposed upon him by this Court.
Opposing the bail plea, learned Senior Assistant Advocate General submitted that the petitioner alongwith the co-accused Mohinder Singh and Govind Rana, had committed heinous offences against the prosecutrix. They are the family members of the prosecutrix. They do not deserve to be enlarged on bail. It was also submitted that while on ad-interim bail, the petitioner had not co-operated with the Investigating Agency. Petitioner had absconded ::: Downloaded on - 31/01/2022 23:08:30 :::CIS 9 after the dismissal of his bail application. It was only after verifying petitioner's location with great efforts that the investigating agency could apprehend him on 13.06.2021.
.
There is every possibility of the petitioner's intimidating and threatening the prosecutrix, prosecution witnesses and tampering the prosecution evidence in case of his enlargement on bail.
5. The date of birth of the prosecutrix, as per the status report, is 05.09.2004. She has levelled allegations of having been raped by her own family members, i.e. by her stepfather and two sons of her paternal Uncles (brothers of her stepfather). Petitioner is one of the step-cousins of the prosecutrix. His name, though did not figure in the statement of the prosecutrix recorded on 03.06.2021 under Section 154 Cr.P.C., however, in her statements recorded under Sections 164 and 161 Cr.P.C. on 04.06.2021, the prosecutrix had named Govind Rana and the bail petitioner (her step-cousins, i.e. sons of her paternal Uncles) as accused. She stated that she was raped by these two also alongwith her stepfather on different occasions and at separate places. The statement of the petitioner under Section 27 of the Indian Evidence Act had also been recorded, wherein he had statedly identified the place of ::: Downloaded on - 31/01/2022 23:08:30 :::CIS 10 commission the crime against the prosecutrix. I have gone through the record including the statements of the prosecutrix recorded on 04.06.2021 under Sections 161 .
and 164 Cr.P.C. The report of RFSL, Dharamshala, prima facie, authenticates the statement of the prosecutrix with respect to her having been raped on 01.06.2021 by co-
accused Mohinder Singh. The record, prima facie, also shows that because of fear of the bail petitioner, the other co-accused persons and because of atrocities committed upon her by them, the prosecutrix used to run away from home at times. She was either brought back or she returned to the home of her stepfather as she had nowhere else to go. Her real mother had left the matrimonial home years ago. Prosecutrix had no knowledge about her real parents and family members. It will not be appropriate to go into the record including the statements of the prosecutrix recorded under Sections 161 & 164 Cr.P.C. at depth at this stage, lest it causes prejudice to the case of either party. All these aspects are to be proved during trial by leading cogent evidence. However, on the basis of the material, which has come on record, the petitioner, at this stage, does not deserve to be enlarged on bail. Petitioner has criminal history. Seven FIRs registered against him are as yet ::: Downloaded on - 31/01/2022 23:08:30 :::CIS 11 pending. During the period of ad-interim bail granted to him by the learned Sessions Judge, Kangra, he did not co-
operate with the Investigating Agency. Petitioner absconded .
after the dismissal of his bail petition by the learned Sessions Judge. In view of these facts and circumstances, possibility of petitioner threatening & intimidating the prosecutrix, influencing prosecution witnesses and tampering prosecution evidence also cannot be ruled out.
For the aforesaid reasons, I find no merit in the instant petition and the same is accordingly dismissed.
It is clarified that observations made above are confined only to the adjudication of petition and shall have no effect on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations.
Jyotsna Rewal Dua Judge September 28, 2021 Mukesh ::: Downloaded on - 31/01/2022 23:08:30 :::CIS