Atma Ram vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner is co-accused in FIR No. 34/2020, registered on 26.5.2020, under Section 376, 506 of Indian Penal Code and Section 4 of Protection of Children from Sexual Offences Act at Police Station, Nerwa, District Shimla. He is in custody w.e.f. 26.5.2020 and through instant petition has prayed for release on bail.

Heard learned counsel for the parties and gone through the status report as well as the record appended therewith.

3(i) The case has been registered against the petitioner on the basis of a complaint lodged on 26.5.2020 by Shri Devinder Singh, father of the child victim. The gist of the complaint was that while Devinder Singh and his wife (parents of the child victim) were away to Olly, their daughter-the child victim aged 11½ years remained at home with her brother aged about 14 years. On 8.5.2020, the child victim had gone to a nearby jungle for grazing her cattle. There, at about 1:30/2:00 P.M., she was caught hold and raped by the petitioner. The incident is stated to have been witnessed by one Swati resident of village Kandal who was also statedly grazing her cattle at some distance. On seeing Swati, petitioner fled from the spot after threatening the child victim from disclosing the incident to anyone. The child victim thereafter collected her cattle and reached home without disclosing the incident to anyone.

It has further been alleged in the complaint that on 10.5.2020, while the child victim was returning home alone from the home of one Shri Devi Lal, resident of village Kandal, then at about 11:00 o'clock during day time she was caught hold by one Nitesh Chauhan and was raped near a stream. She was threatened of dire consequences by Nitesh Chauhan in the event of disclosure of the incident.

The parents of the child victim returned home on 10.5.2020. After their probing into their daughter's alleged strange behaviour, she on 25.5.2020 disclosed the alleged events of 8.5.2020 and 10.5.2020 whereafter instant FIR was registered against Nitesh Chauhan and the bail petitioner herein.

Both the accused persons were arrested on 26.5.2020.

3(ii) Investigation ensued. Statements of witnesses were recorded under Section 161 Cr.P.C. Statement of child victim was also recorded under Section 164 Cr.P.C. The MLC of the child victim was obtained. State Forensic Science Laboratory (SFSL), Junga in its report regarding the DNA profiling observed that 'the report of biology and serology Division State Forensic Laboratory, Junga is negative for the presence of semen on all the exhibits of victim in the above mentioned case. Hence, DNA profiling was not under taken.....'.

Learned Counsel for the petitioner has raised the plea of false implication and innocence. He submitted that parents of child victim had some dispute with the petitioner regarding which certain issues were raised by them in the village on 10.5.2020. During the days that followed, they tutored their minor daughter, resulting in registration of a false case against the petitioner Atma Ram. Petitioner is innocent and has not committed the offences alleged against him.

Learned Deputy Advocate General and learned Assistant Advocate General opposed the grant of bail in view of the serious nature of the accusations leveled against the petitioner involving a child victim of 11½ years of age.

First incident of rape on the child victim is alleged to have been committed by the petitioner on 8.5.2020. The second incident of rape upon the child victim has allegedly been committed by Nitesh Chauhan on 10.5.2020. Both these incidents have allegedly been committed during day time in open. These incidents were reported to the police on 26.5.2020 i.e. sixteen days after the alleged second incident of rape. Co-accused Nitesh Chauhan has already been enlarged on bail in Cr.MP(M) No. 1594 of 2020 vide order dated 21.9.2020 wherein following was observed:-

"The report of biology and serology Division, SFSL Junga is negative for presence of semen on all exhibits of victim. Blood and semen was not detected on the exhibits of the victim except human blood was detected on exhibits-1b (i.e. shirt of child victim). MLC of the petitioner records that 'blood and semen was not detected'. I have carefully perused the statements, the MLC of the petitioner, including the observations therein regarding 'assault injuries' as well as final opinion recorded therein."

There is no opinion that the child victim aged 11 ½ years allegedly raped twice within two days received any external or internal injuries. Considering the nature of allegations and accusations, alleged mode and manner of commission of offences, no purpose will be achieved by continuing the petitioner in custody. Investigation in the matter is complete. Challan stands presented on 21.7.2020 before the competent Court. Status report does not record any criminal history of the petitioner. At this stage, it is not desirable to refer to the evidence collected by the investigating agency, or the statements recorded during investigation, lest it causes prejudice to the parties. Co-accused Nitesh Chauhan has alreadby been enlarged on bail in Cr.MP(M) No. 1594 of 2020. Petitioner is permanent resident of village Kandal, PO Tikkri, Tehsil and Police Station, Nerwa, District Shimla, therefore, his presence can be ensured 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 shall not contact the complainant or his family members in any manner whatsoever. Petitioner shall not contact, threaten or intimidate the child victim in any manner whatsoever.

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

(v) 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;

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

(vii) 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.

Copy Dasti.