Dev Swaroop vs State Of Himachal Pradesh

Virender Singh, J

Applicant-Dev Swaroop has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for releasing him on bail, during the pendency of trial, in case FIR No. 42 of 2021, dated 24th June, 2021, registered with Police Station Pachhad, District Sirmaur, H.P. under Sections 376 and 506 of the Indian Penal Code (hereinafter referred to as the ‘IPC’), Section 4 of the Prevention of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the ‘SC&ST Act’).

According to the applicant, he has been arrested, in connection with the above-mentioned FIR. He has termed the entire story of the prosecution as concocted and pleaded that he has falsely been implicated, in this case.

Applicant has stated that he is an innocent person and a law abiding citizen and has nothing to do with the offences, for which, he has been arrested by the police, in this case.

Asserting the fact that he is an young man of 32 years and is in the custody for the last more than one year, he has prayed that since the investigation, in the present case, is complete and nothing is to be recovered from him or at his instance, no fruitful purpose would be served by keeping him in judicial custody.

Applicant has also tried his luck before the learned Additional District & Sessions Judge, Fast Track Special Court (Rape/POCSO), Sirmaur at Nahan, H.P., by moving Bail Application No. 214-BA/22 of 2021. The said bail application has been dismissed, vide order, dated 8th February, 2022.

Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.

When put on notice, police filed the status report, disclosing therein that on 24th June, 2021, Medical Officer, Nahan Hospital had intimated the police about the admission of a girl, aged about 16 years, who was brought for treatment at Nahan Hospital, as, she was complaining stomach pain and was found pregnant.

7.1. On receipt of such information, ASI Moti Lal, alongwith LC Vandana, No. 681, reached at Nahan Hospital, where the child victim got recorded her statement, under Section 154 of CrPC, to the effect, that she was studying in 10th class in a Government Senior Secondary School. In the month of October, 2020, she used to go to graze her cattle in the jungle of Village Nagli, where one day, her calf went missing in the jungle and while she was making search of her calf, then a labourer of resin contractor, who told his name as Bittu, met him and on seeing her alone, caught her hold. She raised alarm, but, in vain and said Bittu had made physical relations with her, without her consent and threatened her not to disclose about such illicit relation. She had seen said Bittu in the jungle first time and he had never met her again after having had physical relations with her in the jungle. During those days, she experienced irregular menses once or twice and later on her menses stopped. She was having no knowledge about the effect of stoppage of menses. She was also having thyroid problem, due to which her belly used to protrude out. When her stomach protrude, she and her family members thought that it was on account of thyroid malfunctioning.

7.2. On 16th June, 2021, her mother had brought her to a private doctor at Nahan and after telling about her swelling, took the medicines for her. She took medicines for 2-3 days. On feeling pain in her stomach, she was again brought to Nahan hospital, where doctor had given medicines to her and asked her to get done ultrasound. After taking medicines, they went to the house of her maternal uncle, where in the night, she again felt stomach pain and thereafter, her mother and maternal aunt brought her to Government Hospital, Nahan, where the doctor after having checked up, told that she was pregnant.

7.3. She has also stated that in the month of October, 2020, Bittu, resident of Banah Ki Sair, has forcibly made physical relations with her and no one except him had made physical relations with her and she was pregnant on account of making physical relation by the aforesaid Bittu. On the said statement of victim, the FIR in issue, dated 24th June, 2021 was registered under Section 376 of IPC and Section 4 of POCSO Act. The victim had given birth to a female child in the night of 24th June, 2021.

7.4. In her supplementary statement, the victim disclosed that said Bittu was, in fact, resident of towards 'Jaman Ki Sair' and not 'Banah Ki Sair' and beside said Bittu, one Kishan Singh, a neighbour had also made physical relations with her.

7.5. On 24th June, 2021, accused persons Dev Swaroop @ Bittu and Kishan Singh were arrested and they were got medically examined. The samples and exhibits were preserved and their MLCs were obtained. The blood sample of infant was also preserved for DNA profiling.

7.6. On 28th June, 2021, the statement of victim was also got recorded, under Section 164 CrPC, before JMIC, Rajgarh. In her statement under Section 164 CrPC, she had disclosed that accused persons, Vicky @ Ravi, Vinod, Rattan, Kishan Singh and Bittu had made physical relations with her and exploited her sexually.

7.7. On 29th June, 2021, the accused persons, namely, Rattan Singh, Vicky @ Ravi and Vinod Kumar were also interrogated and arrested. They were also got medically examined at CH, Sarahan and samples and exhibits were preserved. The blood samples of the victim, infant/newly born baby of child victim and accused persons were sent for DNA profiling to SFSL, Junga, from where, report was received, which establishes victim as the biological mother of infant, while accused Vinod Kumar as the biological father of the infant.

7.8. During investigation, victim was found belonging to Scheduled Caste, while accused persons Dev Swaroop @ Bittu and Vinod Kumar were found belonging to General Caste and Section 3(2)(v) of SC&ST Act was also charged against accused Vinod and Dev Swaroop @ Bittu. After completion of the investigation, police report under Sections 376 and 506 of IPC, Section 4 of POCSO Act and Section 3(2) (v) of SC&ST Act against accused Dev Swaroop @ Bittu and Vinod and under Sections 376 & 506 of IPC and Section 4 of POCSO Act against accused persons Kishan Singh, Vicky @ Ravi and Rattan Singh filed before the Court.

7.9. The charges against accused persons Vinod and Dev Swaroop @ Bittu have been framed, under Sections 376 of IPC, Section 6 of POCSO Act and Section 3(2)(v) of SC&ST Act and against accused persons Kishan Singh, Vicky @ Ravi and Rattan Singh, under Sections 376 of IPC, Section 6 of POCSO Act on 15th September, 2021. Statement of the victim, during trial, has also been recorded on 19th October, 2021.

On all these submissions, a prayer has been made to dismiss the bail application.

Heard.

A perusal of the record shows that the trial, in this case, is at the verge of completion, as, it has been mentioned in the status report, that, the case has been fixed for further orders on 15th May, 2023, but, one of the accused, in this case, namely, Rattan Singh, has preferred CrMMO No. 848 of 2022, which is pending adjudication before this Court and the further proceedings in the trial Court, have been ordered to be stayed, vide order, dated 12th September, 2022. Meaning thereby, the conclusion of the trial will take sufficient long time and no useful purpose would be served by keeping the application in judicial custody.

Moreover, the bail application cannot be rejected as a matter of punishment, as, pre-trial punishment is prohibited under the law.

Interestingly, in the status report filed by the police, nothing has been mentioned as to why the relief claimed in the application be not granted to the applicant. As per the address given by the applicant, in the bail application, he is a local resident of the jurisdiction of the learned trial Court and there is no apprehension that he will not be available for the trial or may influence the witnesses.

At the time of deciding the bail application, the detailed discussion of the evidence, so collected by the police, during the investigation, should be avoided, as it would cause prejudice to the case of the prosecution as well as the accused.

When, the police has not mentioned anything in the status report, to oppose the application, then, considering the fact that the material witnesses have already been examined, in this case, the bail application is liable to be allowed.

Considering all these facts, the bail application is allowed. The applicant is ordered to be released on bail in case FIR No. 42 of 2021, dated 24th June, 2021, registered with Police Station Pachhad, District Sirmaur, H.P. under Sections 376 and 506 IPC, Section 4 of the POCSO Act and Section 3(2) (v) of the SC&ST Act, on his furnishing personal bail bond, in the sum of Rs.50,000/-, with one surety of the like amount, to the satisfaction of the learned trial Court. This order, however, shall be subject to the following conditions:

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.