Ashraf Khan vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner is in custody w.e.f. 27.2.2020 in FIR No. 7/2020 registered under Sections 363, 376, 506 of Indian penal Code and Sections 4,17 of

Protection of Children from Sexual Offences Act at Women Police Station, Baddi.

Heard learned counsel for the parties and gone through the status report as well as the relevant record placed on the file by the respondent-State.

The case of the prosecution is that on 22.2.2020 one Suleman filed a complaint before the police to the effect that :

(i) on 25.1.2020 his cow-shed was set on fire causing substantial damage. Report regarding this incident was lodged at Police Station, Barotiwala.

(ii) On 28/29.1.2020, his daughter while on her way to school was kidnapped in vehicle No. HP-91-5211.

(iii) His daughter did not disclose the above fact for many days out of threatenings received from the culprits. However, gradually she started

revealing the details about the incident which took place on the day in question.

(iv) The complainant named four persons as culprits viz; (1) Ashraf (Achhoo), (2) Shammu, (3) Achharoo and (4) Soni.

On the basis of above complaint, instant FIR was registered. Petitioner and co-accused Shamsudin surrendered themselves before the police on

27.2.2020.

(i) According to the status report, in the MLC of the prosecutrix obtained on 24.2.2020, the opinion of the Doctor was “there is evidence

suggesting that the victim has undergone sexual intercourse but there is no evidence of recent forceful sexual intercourse.†The date of birth of the

prosecutrix as per her 10th class certificate, collected during investigation, was ascertained as 10.10.2002. Same date of birth is reflected in the

Pariwar register as well which makes the prosecutrix as 17 years 4 months old as on 28/29.1.2020. During investigation it emerged that the incident

was actually of 29.1.2020 and not of 28.1.2020. The prosecutrix was found absent from the school on the said date.

(ii) On the identification of the prosecutrix, the hotel and spot in question were inspected in accordance with law and evidence was collected. The

photocopy of PAN card handed over to the hotel staff at the time of entry in the hotel by one of the culprits and co-accused Shamsudin @ Shammu

was taken in possession and it was ascertained that he had booked room No. 120 in the concerned hotel on 29.1.2020.

(iii) Statements of witnesses, parents of the prosecutrix as well as as of prosecutrix were recorded under Section 161 Cr.P.C. Statement of

prosecutrix was also recorded under Section 164 Cr.P.C. During investigation it also emerged that the prosecutrix was handed over one Airtel Sim

card allegedly given to her forcibly by the petitioner.

(iv) As per the status report, involvement of Mohammad Hasan @ Soni and Achharoo, who were named as culprits in the FIR by the complainant

Suleman, was not found. Location of their mobile phones was traced in areas other than the area in question. Shamsudin, the co-accused along with

the petitioner, has already been enlarged on bail by learned Additional Sessions Judge, Nalagarh on 29.5.2020.

Learned counsel for the petitioner submitted that petitioner has been falsely implicated with the alleged offences. She further submitted that the

nature of allegations levelled against the petitioner, the evidence collected during investigation and the entire investigation as a whole does not implicate

the petitioner with the offences alleged against him.

Learned Additional Advocate General has opposed the grant of bail in view of gravity of the offences alleged against the petitioner.

The FIR in question was lodged after about 20 days of the alleged incident. The complainant had initially named four persons as accused. During

investigation, Achharoo and Soni were not found involved with the alleged offences. The third person named in the FIR i.e. co-accused Shamsudin

has already been enlarged on bail by learned Additional Sessions Judge, Nalagarh on 29.5.2020. The CDR details placed on record by the State

reveals that numerous calls were made from mobile phone belonging to the petitioner and were received by the sim in possession of the prosecutrix

(sim allegedly handed over by the petitioner forcibly to the victim). Statement of the prosecutrix recorded under Section 164 Cr.P.C., placed on the

file, does not make mention of her having been sexually exploited by the petitioner. For adjudication of the instant bail petition, it is not appropriate at

this stage to go further into the statements of prosecutrix and the other evidence collected during investigation by the Investigating Agency, lest it

causes prejudice to the case of either of the parties. Challan in the instant case has already been presented before the Competent Court on 21.4.2020.

Considering the nature of the allegations levelled and considering the evidence collected during the investigation, no fruitful purpose will be served

by continuing the petitioner in custody any further. No criminal history of the petitioner has been indicated in the status report. Petitioner is resident of

village Illewal, Post Office Golthai, Tehsil Baddi, District Solan, Himachal Pradesh, therefore, his presence can be secured in the trial. Accordingly,

the present bail petition is allowed. Petitioner is ordered to be released on bail on his furnishing personal bond of Rs. 50,000/- with one local surety in

the like amount to the satisfaction of learned trial Court having jurisdiction over the concerned Police Station, subject to the following conditions:

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully

cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law;

(ii) Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever:

(iii) Petitioner will not leave India without prior permission of the Court.

(iv) Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the

facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer;

(v) In case of launching of prosecution, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi) Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in

the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail,

PAN Card, Bank Account Number, if any

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

The parties shall not insist upon for obtaining certified copy of this order and shall download the same from the website of the High Court. However,

the Registry is directed to send copy of this order to learned counsel for the parties through email subject to furnishing email addresses by them, if so

required.

Authenticated copy of this judgment duly authenticated by the Secretary be supplied to learned counsel for the parties, if so requested.