Himachal Pradesh High Court
Decided On: 23.09.2024 vs State Of H.P on 23 September, 2024
Author: Virender Singh
Bench: Virender Singh
1
2024:HHC:8978
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2114 of 2024
Decided on: 23.09.2024
Randeep Kumar ...Applicant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the applicant : Mr. K.S. Gill and Mr. Pankaj
Mehta, Advocates.
For the respondent: Ms. Avni Kochhar, Deputy
Advocate General, assisted by
HC Rajesh Kumar No.392, PS
Sangrah, District Sirmaur.
Virender Singh, Judge (oral)
By way of the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS'), applicant-Randeep Kumar has sought his release, on bail, during the pendency of trial, in case FIR No.35 of 2022, dated 25.06.2022, registered with Police Station Sangrah, District Sirmaur, Himachal Pradesh, under Sections 363, 366A, 376(3) of the Indian Penal Code (hereinafter referred to as 'IPC') and Section 6 of the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2
2024:HHC:8978 Protection of Children from Sexual Offences Act (hereinafter referred to as 'POCSO Act').
2. According to the applicant that he is not at all involved in the commission of the alleged offences and has falsely been implicated, in the present case.
3. It is the case of the applicant that the investigation, in this case, is complete and police has submitted the challan, upon which, the competent Court of law has taken the cognizance and now, the case is fixed for prosecution evidence.
4. Highlighting the fact that he is in custody for almost 2 years and 3 months, from the date of his arrest, it has been submitted that chances of conclusion of trial, against him, in near future, are not so bright.
5. The age of the applicant has also been put forward to seek the relief of bail.
6. Apart from this, the statement of child victim, recorded under Section 164 Code of Criminal Procedure (hereinafter referred to as the 'CrPC'), has also been relied upon by the applicant to seek the relief of bail.
7. On the basis of above facts, Mr. K.S. Gill and Mr. Pankaj Mehta, Advocates, appearing for the applicant, has 3 2024:HHC:8978 given certain undertakings, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial.
8. When put to notice, the police has filed the status report, wherein, it has been mentioned that on 24.06.2022, an information was received at Women Police Station, Solan that the child victim, who is residing in Open Shelter Home at Solan, has disclosed that one Randeep Kumar (applicant), who although is known to her, had ravished her without her consent.
8.1. On the basis of above facts, one e-mail was also received from Child Welfare Committee, Nahan, District Sirmaur. On this information, SI/SHO, along with lady Constable Prem Devi No.305 and another police official, had visited the Open Shelter Home, where, the child victim made a statement, under Section 154 of CrPC, vide which, it has been disclosed that she had dropped her studies in the year 2020, when, she was in Class VII. Her mother has solemnized the marriage in the year 2020, after the death of her father. After the death of her father, the child victim started residing with her paternal uncle and aunt. The child victim was not feeling comfortable in the house of her paternal uncle and as 4 2024:HHC:8978 such, in the month of March, 2022, she has started residing in the house of her maternal uncle. During that period, she was acquainted with the applicant, who had given his mobile number to her.
8.2. As per the status report, thereafter, both, child victim and applicant, remained in touch with each other on mobile phone and later, the child victim had gone to her native place. As per her further revelation, applicant had given an offer to solemnize the marriage with her. One day, the child victim was beaten by her paternal uncle and thereafter, she had given her positive response to the offer, made by applicant Randeep Kumar. The child victim had left her home and thereafter, she came to Solan, along with applicant. Subsequently, she had started residing with applicant Randeep Kumar in his residential quarter, where, both of them had developed physical relations. Further, the child victim has admitted that she is carrying the foetus of the applicant.
8.3. On the basis of above facts, police has registered the case in question. Thereafter, the statement of Incharge of open shelter home was recorded, under Section 161 of CrPC. The child victim was sent to Dr. Y.S. Parmar Medical College 5 2024:HHC:8978 & Hospital, Nahan, where, her pregnancy test was conducted. The Medical Officer has collected the physical samples. 8.4. Apart from this, the child victim had refused to undergo medical examination. The statement of other witnesses was also recorded. In this case, the DNA test was also conducted. The conclusion of the said test is reproduced, as under:-
"i) (child victim) XXXX (name withheld) (source of Exhibit-2 (blood sample on InstaDNA card. (child victim) XXXX (name withheld)) is the biological mother of the product of conception (source of Exhibit-1-1 (product of conception)
ii) Randeep Kumar (source of Exhibit-2-1 (blood sample on InstaDNA Card. Randeep Kumar) is the biological father of the product of conception [source of Exhibit-1-1 (product of conception)".
8.5. After the completion of investigation, the police has filed the challan (final report), under Section 173(2) of CrPC. The learned Special Judge (Rape & POCSO Act), Nahan, has taken the cognizance, in this case. As per status report, 8 prosecution witnesses have been examined and case is now listed on 21.10.2024 for recording the statements of remaining prosecution witnesses.
9. On the basis of above facts, Ms. Avni Kochhar, Deputy Advocate General, has prayed that the present bail application may be dismissed.
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2024:HHC:8978
10. Heard.
11. Investigation, in the present case, is complete. The role, allegedly attributed by the applicant, in the commission of alleged crime, will be proved after completion of trial. At present, the police has not been able to make out a case against the applicant for custodial interrogation.
12. Moreover, the bail application cannot be rejected, as a matter of punishment, as the punishment can only be inflicted by the competent Court of law, after the trial.
13. When, the custodial interrogation of the applicant is no more required by the police, in this case, then, keeping the applicant in judicial custody, that too, for indefinite period, would be nothing, but, a pre-trial punishment, which is prohibited under the law.
14. 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 such, he cannot be kept in the judicial custody for indefinite period.
15. Although, much reliance has been placed upon the statement of child victim, recorded under Section 164 of CrPC, but, the effect of the same will be considered by the learned trial Court. Moreover, considering the age of the 7 2024:HHC:8978 applicant, keeping him in the company of the hardened criminals, in the judicial custody, would certainly affect his future.
16. The police has not given any other criminal history of the applicant. The applicant is the permanent resident of District Sirmaur and as such, it cannot be apprehended that in case, he is ordered to be released on bail, he will not be available for the trial.
17. Considering the peculiar facts and circumstances of the present case, this Court is of the view that the present bail application deserves to be allowed.
18. Consequently, the bail application is allowed and the applicant is ordered to be released, on bail, in case, FIR No.35 of 2022, dated 25.06.2022, registered with Police Station Sangrah, District Sirmaur, Himachal Pradesh, under Sections 363, 366A, 376(3) of IPC and Section 6 of POCSO Act, on his furnishing bail bonds, in the sum of Rs.50,000/-, with one surety, in the like amount, to the satisfaction of learned trial Court. This order, however, shall be subject to the following conditions:
a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every 8 2024:HHC:8978 date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) The applicant 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) The applicant shall not leave the territory of India without the prior permission of the Court.
19. 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.
20. It is made clear that respondent-State is at liberty to move appropriate application, in case, any of the bail conditions, is found to be violated, by the applicant.
21. Registry is directed to forward a soft copy of the bail order to the Superintendent of Model Central Jail, Nahan, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
22. In case, the applicant is not released, within a period of seven days, from the date of grant of bail, the Superintendent of Model Central Jail, Nahan, is directed to 9 2024:HHC:8978 inform this fact to the Secretary, DLSA, Sirmaur at Nahan. The Superintendent of Model Central Jail, Nahan is further directed that if 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 )
September 23, 2024 Judge
(Gaurav Thakur)
Digitally signed by RAJNI
Date: 2024.09.23 17:13:23 IST