Jasbinder vs State Of H.P

Anoop Chitkara, J

On the allegations of doing sex with a minor girl by payment of money by the petitioner, which led to registration of FIR and his arrest, the petitioner

has come up before this Court seeking regular bail.

Earlier the petitioner had filed Cr.MP(M) No.773 of 2021, which was dismissed by this Court vide judgment dated 15.06.2021

The petition and status report reveal no criminal history.

A perusal of the police file reveals the following evidence:

a) On 30th January, 2021, victim's mother informed the SHO of Police Station Majra, District Sirmour, HP., that her daughter, aged around 16 years,

had left home on 28th January, 2021 without informing anyone. Despite frantic searches in the houses of the relatives and other places, they could not

find her. She requested the Police to search for her daughter. Based on such information the police registered FIR mentioned above for the offences

of kidnapping.

b) On 31st January, 2021 the victim alongwith her mother, visited the Police Station Majra. After recording her statement under Section 161 Cr.P.C.,

the Investigator got her medical examination conducted in Civil Hospital Paonta Sahib. A female doctor examined her. In the history narrated by the

victim to the Doctor, she told her about sexual assaults from 28th to 30th January, 2021. She further informed the Doctor that at the time of her

examination, she was wearing the same underwear which she was wearing on the dates of assault. After medical examination, Doctor also collected

swabs from her private parts and took her clothes, including the underwear. Later on, the Police sent the scientific evidence for examination by the

Forensic Science Laboratory. A partial report has already come, but the report about the underwear does not form part of the Police file and must be

awaited.

c) On 1st April, 2021, Investigator produced the victim before Judicial Magistrate, who recorded her statement under Section 164 Cr.P.C. She stated

that on 26th January, 2021 she had left her home because of a boy named Ajay. A month before that, when she had gone to her sister's house, Ajay

had met her. When she had gone out of the room for washroom during the night, Ajay intercepted and forced himself upon her. He promised to marry

her and warned her not to reveal the incident to anyone, and if she did so, then the video he has made of the act would make it public.

d) Ajay handed over a mobile set to the victim and told her to talk with him through this phone. She took the phone and did not tell anyone about it. On

25th January, 2021, when she was cutting grass along with her brother, the phone fell from her pocket. Her brother inquired about this phone, and then

she revealed to him that Ajay had given this phone to her. On this, her brother told the victim that she would marry Ajay, and to this, she replied in the

affirmative. Her brother told her to tell Ajay to visit their home and his parents and initiate the talks of marriage and do the engagement. After that, on

the asking of her brother, she called Ajay and told him everything and called him to his home. Ajay told her that he, along with his parents, would visit

her home the next day. However, he did not visit. She kept on waiting till 28th January, and on that day she left her home. Although she was afraid

that her brother would scold her, he did not say anything to her.

e) She left home and went to Paonta Sahib, where she sat in a park. After some time, she started crying and then a lady approached her and tried to

console her. She revealed her name as Shalu and told the victim that she is very lonely and offered to stay with her. Believing that Shalu would help

her out, the victim agreed to accompany her to her home. However, Shalu was indulging in forcing girls into flesh trade and was, in fact, a debauch.

f) At home, Shalu asked the victim to change clothes which she did. After that, she did her makeup and took her to a hotel, where two boys came.

Shalu took money from them and sent her along with one boy to the hotel's room, where he raped her. After fifteen minutes, he left the room, and at

that time, the second boy entered the room, and he also raped her. On 29th January, 2021 Shalu again did her makeup and took her to a different

hotel. In the said hotel, a boy came, and Shalu took money from him and locked the victim and the boy in the room, where he raped her. The next day,

Shalu called another boy who also raped her. After that, they returned to her home.

g) On 30th January, the victim's uncle came to know that she is in an escort company. Shalu also came to know that the victim's uncle is aware of her

location. Shalu asked the victim to leave the place for 3-4 days and, after that, to come again. Shalu refused to return her AADHAR card, but she

took it back from her and left her home.

h) The narration of her supplementary statements recorded under section 161 Cr.P.C reveals that she identified the rooms and told the Investigator

that during her stay with Shalu, a person named Banty would make frequent visits. She further narrated that Shalu had addressed one of the rapists as

Arun. The Investigator showed the pictures of the accused on a mobile app, and on seeing those photographs, she identified Jaswinder Singh, Hukam

Singh.

i) The Investigator arrested the accused and collected scientific evidence. After completion of the investigation, the Officer in Charge of the Police

Station filed the police report under Section 173(2) CrPC, seeking prosecution of Shallu (A-1), Ajay Kumar (A-2), Baldev Raj Goel alias Banty (A-3),

Hotel Manager Arun Thakur (A-4), Jaswinder Singh (A-5), and Hukam Singh (A-6).

j) Based on this evidence, the State has launched prosecution against these accused persons.

Ld. Counsel for the petitioner submitted that prima facie, the evidence points out that the victim knew the petitioner because he had worked as a

carpenter in her house, but despite that, she did not name him and it shows that she is not a credible person.

On the contrary, Mr. Nand Lal Thakur, Ld. Additional Advocate General, submitted that the victim had identified the petitioner through profile

picture in her phone and simply she did not name him, might be for various reasons including fear and this is not a ground for bail.

The argument of learned counsel that the petitioner is entitled to bail because despite knowing him, the victim kept quiet is not a ground for bail. The

victim, who is minor, might have kept quiet for various reasons and more prominently may be because of fear or being exposed in front of her family

members and villagers. Given the gravity of acquisitions and nature of allegations, the petitioner is not entitled to bail. Thus, the petition is dismissed.

However, liberty is reserved to the petitioner to approach either this Court or trial Court after the recording of statement of the victim. It is clarified

that in case the petitioner files an application before the trial Court, then the order of rejection passed by this Court will not come in the way of

deciding fresh application on its own merits.

The present bail petition is dismissed in the terms mentioned above.