Balvir Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Cr.P.C. for enlarging him on bail in case FIR No. 68 of 2021 dated 12.9.2021, registered in Police Station Chopal, District Shimla, H.P. under Sections 376, 342,34 of Indian Penal Code (for short “IPC”) and Section 4 of Prevention of Children from Sexual Offences Act (for short “ POCSO Act”).

Status Report stands filed and record has also been produced.

As per status report, prosecution case is that on 11. 9.2021, 16 years old victim was called by her aunt (Bua) in another village whereupon victim started for village of her aunt. But when victim found that it was too late to go to village of her aunt, she started to return. At that time, a truck came from Matal side and driver of the truck gave lift to her. Apart from driver, one more person was also in the truck. On the way, in the forest, truck driver parked the truck at the side of the road and got off the truck to tie tarpaulin. At that time, the other person, i.e co-accused Dinesh, violated the person of victim in the cabin of the truck and, thereafter, driver of the truck came in the cabin of the truck and caught the girl by hand, but victim rescued herself from the clutches of the driver and came out of truck and took lift in a car to flee from spot and reached Laani, where she met Arun, a Teacher, who on noticing that victim was disturbed, enquired about the reason for that, whereupon victim disclosed the incident to him, in turn Arun informed one Ganesh about it who informed Deepak, brother of the victim, telephonically. Deepak informed parents of the victim, who came to Laani. Thereafter entire episode was narrated by the victim to her parents. As it was too late, therefore, matter was reported to police on next morning leading to registration of FIR. Statement of victim was also recorded under Section 164 of Cr.P.C wherein she reiterated the incident as recorded in the FIR.

FIR in the present case was registered on 12.9.2021 and petitioner was arrested on 13.9.2021 and since then, after remaining in police custody, petitioner is in judicial custody.

Learned counsel for petitioner submits that since beginning, stand of petitioner is that he has no role in commission of offence in any manner and if story of prosecution is considered to be true, then also co-accused Dinesh did not commit the offence in presence of petitioner as at that time, as per version of prosecution, he was tying tarpaulin on his truck as at that time, it had started raining and as per statement of victim, by that time when driver of truck came inside the cabin the offence by co-accused had already been committed.

It has been further submitted that petitioner had also approached this Court previously by filing Cr.MP(M) No. 2042 of 2021 which was dismissed by this Court on 22nd November, 2021 by observing that at that stage, societal interest was against the petitioner and thus petitioner was not entitled for bail. Further that petitioner had again approached the Coordinate Bench of this Court in January 2022 by filing Cr.MP(M) No. 2434 of 2021 which was dismissed on 24th January, 2022 with observation that there was nothing on record to suggest that victim or her family had any personal enmity either with petitioner or with co-accused and there was nothing on record to prima facie impeach the credibility of version given by victim.

It has been submitted that at the time of adjudicating Cr.MP(M) No. 2042 of 2021 it was very initial stage and matter was considered only on the basis of statement recorded under Section 154 Cr.PC as well as statement of victim recorded under Section 164 Cr.P.C. whereas at the time of adjudication of Cr.MP(M) No. 2434 of 2021, statements of victim and other witnesses were not recorded yet. But now, circumstances have changed, as statements of victim and her parents have been recorded on 15.2.2022 and 25.4.2022. It has been stated that in her deposition in Court, in examination-in- chief, though victim reiterated her version deposed in previous statement, however later on she was declared hostile for resiling from her earlier statement and was cross-examined by the Public Prosecutor, wherein she categorically stated that no rape was committed with her and she had not shown the place and vehicle to police where occurrence took place and further that she did not know about truck and she refused to identify accused by saying that accused, shown to her in Court, were seen by her for the first time and she did not know their names. She even stated that on 11.9.2021 she had not taken any lift in truck. She had further deposed that she was 20 years old at the time of deposition i.e. 25.4.2022. Her parents were also declared hostile and subjected to cross-examination by the Public Prosecutor.

It has been contended on behalf of petitioner that since beginning there was specific allegation of violation of person by co-accused Dinesh Kumar but not by petitioner. He has further submitted that merely catching hand of victim by petitioner does not infer that petitioner was intending to violate her and had it been so, then it would not have been possible for victim to got off the truck and flee from there as alleged accused were two in number, whereas victim was alone and further that for any act committed by co-accused, in absence of petitioner, petitioner should not be considered to be accomplice or accused on equal footing.

It has also been canvassed that it is settled that appreciation of merit of evidence by this Court during consideration of bail application is not warranted, however, entire material can be taken into consideration for granting or rejecting the bail application.

Considering all facts and circumstances, as narrated in the prosecution story, and other material placed before me, I am of the opinion that, at this stage, without commenting upon the merits of the claims and counter claims of parties, case of petitioner can be considered differently than co-accused and he can be enlarged on bail.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall 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 from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

13 In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

14 Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

15 Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petition is disposed of in aforesaid terms. Copy dasti.

Parties are permitted to use/produce copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.