Dinesh Kumar vs State Of Himachal Pradesh

Ajay Mohan Goel, J

HC Jaswant Singh No. 93, IO Police Station Sadar, Bilaspur, H.P. present with case record.

Status report has been filed, which is perused and ordered to be taken on record.

By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of regular bail in FIR No. 39 of 2021, dated 24.02.2021, registered at Police Station Sadar Bilaspur, District Bilaspur, H.P. under Sections 363, 376 and 506 of the Indian Penal Code and Sections 4 and 6 of the POCSO Act.

The allegation against the petitioner is that he raped victim, aged 12 years old, repetitively till said fact was disclosed by the victim to her mother on 23.02.2021, which led to lodging of the FIR in issue on 24.02.2021, after which, the petitioner was taken into custody.

Mr. Onkar Jairath, learned Counsel for the petitioner has argued that the petitioner is innocent and has been falsely implicated in the case. He has submitted that there is some enmity between the family of the victim and the petitioner and it is in this background that the petitioner has been falsely implicated in the case. Learned Counsel has argued that the contention of the prosecution that the minor is subjected to sexual intercourse repetitively by the petitioner was false as there was nothing on record to demonstrate as to why this fact was not revealed by the victim earlier. Learned Counsel has submitted that taking into consideration the age of the accused/petitioner, who was 19 years old at the time when the incident took place, he be released on bail. Learned Counsel for the petitioner has also submitted that as of now, 13 prosecution witnesses stand examined, which included main witnesses also, and thus, there is no threat of the petitioner influencing any of the witnesses, if released on bail, so as to have some effect on the trial. Learned Counsel has also argued that the petitioner otherwise also does not has any criminal history as there is no other case pending against him. Learned Counsel has supported his submissions by relying on the judgment of the Hon’ble Supreme Court of India passed in Criminal Appeal No. 632 of 2022, titled as Jagjeet Singh and Ors. vs. Ashish Mishra @ Monu and Anr. Dated 18.04.2022.

Opposing the bail petition, learned Additional Advocate General has argued that taking into consideration the gravity of the offence alleged against the petitioner and further the fact that the victim was only 12 years old girl at the time of the incident, it is not at all advisable to release the petitioner on bail at this stage. He has further submitted that as of now 8 prosecution witnesses remain to be examined and they include some important and relevant witnesses, and in the event of release of the petitioner on bail, there is each and every possibility that the petitioner may try to influence the remaining witnesses so as to adversely affect the trial. Learned Additional Advocate General has also argued that taking into consideration the age of the victim and the fact that the accused happens to be a local resident of the area, release of the petitioner on bail otherwise also will be intimidating to the victim and her family, and therefore also, he submits that the present petition deserves dismissal.

I have heard learned Counsel for the petitioner and learned Additional Advocate General and also gone through the averments made in the bail petition as well as documents appended therewith, including the status report.

The allegation against the petitioner is that he has sexually molested a 12 years girl repetitively. Though, learned Counsel for the petitioner is right when he submits that the petitioner has to be presumed innocent till proved guilty but then fact of the matter is that a Court, while deciding a bail petition under Section 439 of the Code of Criminal Procedure has to take into consideration the following conditions, i.e. gravity of the offence, possibility of the accused again committing the offence, if released on bail and possibility of the accused influencing the witnesses etc. if released on bail. All these conditions are independent of each other.

In the present case, the allegations which stand made against the petitioner, already stand spelled out in above paras of the present order. By no stretch of imagination, it can be said that allegations leveled against the accused/petitioner are not grave. Though, the Court is not oblivious to the fact that the accused was 19 years old at the relevant time, but this Court cannot loose sight of the fact that the victim was only 12 years old at the time of the incident. Therefore, in these circumstances, this Court is of the considered view that taking into consideration the gravity of the offences which have been leveled against the petitioner, he cannot be ordered to be released on bail at least at this stage. The Court also concurs with the submission which has been made on behalf of the State that being a local resident of the area, if the petitioner is released on bail, the same will be intimidating to the victim who is still a minor as also the family of the victim as there is a possibility that petitioner may try to influence/threaten the witnesses whose statements are yet to be recorded. As far as the judgment relied upon by learned Counsel for the petitioner is concerned, this Court respectfully concurs with the observations made by Hon’ble Supreme Court in said case but taking into consideration the fact that as of now, statement of eight witnesses is still to be recorded, and for which purpose, the case is ordered to be listed in the month of August, 2022, this Court is of the considered view that it is not the right time to consider the prayer of the petitioner for releasing him on bail. Accordingly, this petition is dismissed at this stage.