Dina Nath vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for alluring and raping a minor girl aged 15 years, has come up before this Court seeking regular bail.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 4.6.2020,

Learned Additional Sessions Judge (Fast Track Special Court POCSO), Mandi, District Mandi, HP, dismissed the petition because the bail petitioner is

the main culprit. After that, the petitioner filed bail petition before this Court, which was registered as Cr.MP(M) No.953 of 2020, which was

withdrawn by learned counsel. Subsequently, he again filed another bail application, which was dismissed by this Court.

In Para 11 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that on 23.3.2020, the mtoher of the victim made a written complaint to the Police Station, Hatli,

Baldwara, District Mandi, to the effect that the victim is aged 15 years. On 18.3.2020, the victim alongwith her brother and Mama, maternal uncle

(brother of the complainant), had gone to attend a Jagran in their vehicle. After attending the Jagran, when her brother, son and daughter were

returning home, one Bhawna Devi also accompanied them. When they reached at a place known as Patrighat, then the victim, Bhawna Devi and one

Lucky got down from the vehicle. Her son and brother waited for her for a considerable time, but she did not return and her brother and son reached

home. On inquiry, the complainant came to know that her daughter, Bhawna and Lucky had consumed liquor in the liquor vend at Patrighat. After

that, Bhawna Devi and Lucky reached home, but the victim did not came. During the night, the complainant went to the home of Bhawna and Lucky

and inquired about the victim and on that Bhawna Devi and Lucky told her that one Vijay Kumar @ Bobby, son of Pitamber took her on his

motorcycle towards Kalkhar. She also informed the police that the said Boby is her Mama’s son (maternal uncle) and droves the truck. Yesterday

morning i.e. on 19.3.2020, she sent to the house of her Mama and inquired about Boby. She came to know that Boby had left in the truck. After that,

she called the owner of the truck, who in turn called Boby and then Boby told the owner of the truck that he is in Pathankot. Upon this, owner of the

truck, complainant and brother of the complainant proceeded towards Pathankot and before reaching Pathankot they noticed the said truck on the way

and found the victim present in the said truck. They rescued the victim and started returning to home with her brother and owner of the truck. They

started returning home. The victim, complainant and her brother sat in the car, whereas the owner of the car sat in the truck with his driver. After

traveling of a Kilometer, Boby stopped the truck and ran away. After that, the owner of the truck himself drove the truck. In the car, the victim told

her mother (complainant) that Boby committed wrong act with her on two occasions for the reasons that she was under intoxication. Boby further

threatened her that in case she discloses this incident to anyone, then she would be done away. Based on this information, the police registered the

FIR mentioned above. The victim was subjected to medical examination where the Doctor preserved her vaginal swab for testing from Chemical

Laboratory. As per the report of the Laboratory, semen was detected from the vaginal swab of the victim.

The police arrested Vijay Kumar @ Boby on 26.5.2020 and found that his age was 18 years. Due to COVID-19 Pandemic, the police could not

record the statement of the victim under Section 161 Cr.PC which was done on 18.5.2020. In the statement under Section 161 Cr.PC, the victim re-

iterated the facts which were narrated by her mother in the complaint. In the statement recorded under Section 164 Cr.PC, which was recorded on

26.5.2020, the victim revealed that Dina Nath, the present bail petitioner had taken her in his vehicle and after parking it in an isolated place, he

committed rape upon her. After that, police arrested Dina Nath, petitioner herein. The investigation further revealed that the victim was less than 16

years of age and added Sections 4 and 6 of the POCSO Act.

Ld. Counsel for the petitioner contends that further incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to

very stringent conditions.

Reasoning:The accused took advantage of the lonliness of a minor girl and committed sexual intercourse with her. There eas no reason for the

victim to have consented with an unknown person. It is not the case that she could have given consent for other considerations because she was

under 18 years of age. Accordingly, the present bail petition is dimissed.

Learned counsel for the petitioner wanted to draw attention of this Court to certain documents which forms part of the police report. However,

such documents were neither annexed with the petition nor handed over to this Court. As such, in the absence of the same, it was not possible to

place reliance upon such documents.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

There would no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order from the

official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer

can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands dismissed in the terms mentioned above, with liberty to file the same afresh subsequently.