Balwinder Sharma vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is accused in a case registered vide FIR No. 11 of 2021, dated 18.01.2021, registered at Police Station Dharamshala, District Kangra, H.P., under Sections 363, 366A, 376 of IPC, Section 4 of the POCSO Act and Section 3(II) (v) of the SC & ST ( Prevention of Atrocities ) Act, 1989.

Petitioner has sought bail under Section 439 of Cr. P.C., on the ground that he has committed no offence. According to the petitioner, he and the victim had prior and prolonged intimacy. They have been indulging in long duration calls on their mobile phones during late night hours. The victim had accompanied petitioner of her own violation.

Petitioner has further contended that he is innocent. The investigation in this case is complete and challan has already been filed. The allegations against the petitioner are yet to be tested during trial. He is young person of 21 years of age and is a labourer by profession. He has no criminal history and in case released on bail he shall not tamper with the prosecution evidence. He has further undertaken to abide by terms and conditions as may be imposed upon him, while releasing on bail.

On notice, respondent has placed on record status report. This Court has been informed that the charges have already been framed against the petitioner and the trial is at the stage of recording of statements of prosecution witnesses. The statement of the victim was scheduled to be recorded on 29.09.2021, but the same could not be recorded and the matter was adjourned for recording of the statement of the victim as well as other prosecution witnesses.

It has been alleged against the petitioner that he kidnapped the victim, who is a minor. The date of birth of victim is stated to be 07.01.2004. The alleged offence was committed on 17 & 18.01.2021. It is further alleged that the victim, during investigation has accused the petitioner of having committed rape on her.

I have heard learned counsel for the petitioner and also learned Senior Additional Advocate General for the respondent/State and have also gone through the contents of the status report as well as the record of the investigation.

The material collected by investigating agency and relied upon by the prosecution, prima­facie reveals commission of offence under Sections 363, 366A, 376 of IPC, Section 4 of the POCSO Act and under Section 3(II) (v) of SC & ST Act against the petitioner. Learned Trial Court has already charged the petitioner for said offences after finding prima­facie case against him. The plea raised by the petitioner is that the victim had accompanied him of her own violation, may not help the cause of the petitioner in the instant petition. As per the available material, victim was almost 17 years of age on the date of alleged offence, therefore, her consent, if any, will not make any difference as it can not be construed to be a valid consent under law. During investigation, victim has categorically alleged commission of rape on her by the petitioner, which by no means, can be ignored, at this stage.

The victim is yet to be examined as a witness. One of the factors for considering the petition for bail is to ensure fairness in the trial. The release of petitioner on bail, at this stage, will not be in the interest of justice for the reason that the victim is yet to be examined as a witness and the petitioner on bail can always find opportunities to impress upon the victim not to make statement according to her will. The victim being the prime witness in the case, needs to depose before the Court independently without being under any influence, whatsoever. In the given facts of the case, when the petitioner has admitted his past acquaintance with victim, the possibility of influence being exerted by petitioner on victim can not be ruled out.

Even otherwise, the gravity of offence and its serious consequences on the social fabric also dis­entitle the petitioner from being released on bail at­least until the victim makes voluntary deposition before the learned Trial Court as a witness.

In view of the above discussion, this Court is not inclined to allow the prayer of the petitioner for grant of bail, at this stage, for the reasons detailed herein­above. The petition is accordingly, dismissed. However, the petitioner shall have liberty to approach the Court for grant of bail, at an appropriate stage, if so advised.

Expression of any opinion rendered herein above shall be construed only in reference to disposal of this petition and shall have no effect whatsoever on the merits of the case to be tried by the learned trial court. The application stands disposed of.