Balwinder Sharma vs State Of Himachal Pradesh

Satyen Vaidya, J

The petitioner is an accused in case FIR No. 11 of 2021 dated 18.1.2021, under Sections 363, 366A and 376 IPC read with Section 4 of the POCSO Act and under Section 3 (II) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989, registered at Police Station, Dharmshala District Kangra, H.P. The petitioner is in custody since 3.2.2021.

Petitioner has approached this Court for grant of bail under Section 439 of Cr.P.C., on the grounds that the petitioner is innocent and is not involved in any alleged offences. The investigation of the case is complete and the trial has also commenced. The victim has already been examined as prosecution witness. Truthfulness of the allegations against the petitioner is yet to be decided during trial. No criminal antecedents are attributable to petitioner. Petitioner is 21 years old and is a labourer by profession. Petitioner has undertaken not to tamper with the prosecution evidence. Petitioner has further undertaken to ensure his presence during the entire trial and has also to abide by the conditions, as may be imposed against him.

In response, it has been alleged against the petitioner that he kidnapped the victim, who was a minor. The date of birth of victim is 7.1.2004. The victim was about 17 years of age on the date of commission of alleged offence. It is further alleged that the petitioner has committed rape on the victim and the trial of the case is underway.

I have heard learned counsel for the parties and have also gone through the records carefully.

Sh. Vijender Katoch, learned counsel for the petitioner has submitted at the outset that the instant petition has been filed in changed circumstances, which have taken place after rejection of earlier bail application of the petitioner by this Court vide order dated 5.10.2021. Learned counsel for the petitioner has invited the attention of this Court to paragraphs 9 and 10 of the order dated 5.10.2021, passed by this Court, in Cr.MP(M) No. 1713 of 2021, which read as under:-

“9. Even otherwise, the gravity of offence and its serious consequences on the social fabric also dis-entitle the petitioner from being released on bail at-least 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 herein-above. 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.”

The victim is stated to have been examined as prosecution witness before learned trial Court on 28.12.2021, which fact is not contested by the respondent. Thus, the present petition though being successive has been filed in the changed circumstances and is held to be maintainable. The petitioner has placed on record copy of statement on oath of the victim, recorded by learned trial Court, on 28.12.2021. Though, this Court while deciding the bail application will not indulge in appreciation of evidence, yet, it will not be unreasonable to look into the material on record for the purpose to assess the gravity and seriousness of allegations leveled against the petitioner. The victim in her statement before Court has denied having been subjected to sexual assault by petitioner. The statement of victim was recorded during the continuance of judicial custody of petitioner. It is not the case of respondent that the victim has deposed before the Court under any duress, coercion or compulsion, employed on her, by petitioner or anyone on his behalf.

Petitioner is in custody since 3.2.2021. It has not been suggested on behalf of the respondent that petitioner, who is a simple labourer by profession, has potential to tamper with prosecution evidence. It is also not the case of respondent that in case of release of petitioner on bail, the trial shall be affected adversely. The trial of the case is likely to take considerable time before completion. In the given circumstances of the case, pre-trial incarceration is not justified. Even otherwise, pre-trial incarceration cannot be ordered as a matter of rule. There is no likelihood of his absconding from the course of justice. No fruitful purpose shall be served by prolonging the custody of the petitioner, as the victim has already been examined.

In view of peculiar facts and circumstances of the case, petition is allowed and the petitioner is ordered to be released on bail in the event of his arrest in case FIR No. 11 of 2021 dated 18.1.2021, under Sections 363, 366A and 376 IPC read with Section 4 of the POCSO Act and under Section 3(II) (v) of SC & ST Act (Prevention of Atrocities) Act, 1989, registered at Police Station, Dharmshala District Kangra, H.P., on his furnishing personal bonds in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the Investigating Officer. This order shall be subject to following conditions:-

i) That the petitioner shall regularly appear before learned trial Court on each and every date of hearing.

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 the Court or to the Police.

iii) That the petitioner shall not in any manner tamper with the prosecution evidence.

iv) That any indulgence of petitioner in criminal activities during the continuance of this order shall entail cancellation of the bail granted to the petitioner.

v) That the petitioner shall not leave India till conclusion of trial without permission of the learned trial Court.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.