Joginder @ Abhishek vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, an unmarried boy of 23 years, who is in custody with effect from 14.10.2020 for committing sexual intercourse with a minor girl,

aged 14 years and 6 months, has come up before this Court seeking regular bail.

As per paragraph 9 of the bail petition, petitioner has no criminal antecedents. Status report also does not dispute the same.

Earlier to the present petition, the petitioner had filed a bail petition, which was registered as Cr.MP(M) No.181 of 2021. Vide order dated 2nd

February, 2021, said petition was dismissed, with liberty to file fresh. Consequent upon that liberty, petitioner has again come up before this Court by

annexing documents received by him under Section 173(2), Cr.P.C.

I have heard learned counsel for the parties and gone through the bail petition.

In paragraph 5 of the petition, it is mentioned that the accused is innocent and has been involved falsely in the present case by the complainant due

to grudge between complainant and petitioner’s parents, who were against the relationship and love of the petitioner and the prosecutrix. The

petition is supported by affidavit of his father Shri Charanji Lal.

On the information given by the mother of the victim, police registered FIR on 14.10.2020. On 17.10.2020, investigator produced the victim before

the Court of Judicial Magistrate, where her statement under Section 164, Cr.P.C. was recorded on oath.

The said statement forms part of the report under Section 173, Cr.P.C. and has been annexed with the bail petition by the petitioner. The victim

testifies as follows:-

(i) On 13.10.2020 at 11:15 a.m., she had gone to give food to her father, who was working on a machine (apple grading). After handing over the food,

when she was returning home, her friend Sushma met her. Sushma told her that they will bring a note book from one Sahil. After that they went to the

place of Sahil where they called him by raising voice, but he did not meet.

(ii) When they proceeded towards the home, then Abhishek, bail petitioner herein, met them and he asked Sushma to carry grass to a place. However,

Sushma refused to fetch the same and also said that she was afraid of him. Subsequently, Sushma went to her room and victim started walking

towards bazaar.

(iii) When victim was walking towards bazaar, Abhishek also started following her. After purchasing goods, when she was returning home, then,

Abhishek started walking pace to pace with her. She asked him not to walk with her by saying that the people are watching them. When they reached

near to their house, she took rest because she was tired. After taking rest for some time, she started walking again and Abhishek also started walking

with her again. Abhishek told her not to return to her home because her brother and uncle would ask her the reasons for getting late. On this she

started proceeding towards the house of her grandparents.

(iv) On this, Abhishek told her to accompany him. On hearing this, because she was afraid, she started walking with him. They walked from Kholighat

to Tikkar, where a vehicle stopped and Abhishek told her that they can get lift in the said vehicle. On boarding the vehicle, Abhishek called his friend

and told that he is coming to Narkanda with someone and asked his friend to meet him there. On reaching Narkanda, he told his friend that he would

be withdrawing money from the ATM. He also told him to hand over keys of his room and said that they would be staying there for some time.

(v) On reaching Narkanda, they went to the room which was of Vijay, a friend of Abhishek. Around 6:30 p.m. Abhishek told his friend Vijay that they

have to take dinner and asked for phone number of another friend, named Kapil. After that they called Kapil and he told that he will hand over keys of

a room, which is near to the temple. On reaching there, they went to the said room and Kapil told that he has to go to Rampur and then he left. The

victim and the accused took dinner in a hotel at Narkanda and thereafter went to the said room. When staying in the said room, Abhishek started

forcing himself upon her. Despite repeatedly saying no, Abhishek did numerous sexual assaults with her. The victim said that she could do nothing.

After doing sex, he told her not to take any action.

(vi) In the morning, a friend of Abhishek reached home and told him that his mother is looking for him. After some time Abhishek also received a

phone of his mother and his mother told him that he had brought a girl with him and asked him to tell the truth. Then a phone of her (victim) uncle

(chachu) also came and subsequent to that, Abhishek and his friend Vijay said the victim not to reveal this incident to anyone. Thereafter, she returned

to her home in the vehicle of Vijay.

The investigator had also got the victim medically examined, where her FTA was obtained. Similarly, after arresting the accused, his FTA was also

obtained for the purpose of matching. From the room, the investigator recovered used condom and the same alongwith FTA was sent for DNA

matching to the laboratory. Vide report of the laboratory, DNA on the exterior of the condom matched with the genetic material of the victim,

whereas, the DNA obtained from the inner portion of the condom, completely matched with the DNA material of the accused.

Although in paragraph 5 of the petition, the petitioner has stated on affidavit that he was in love with the victim and the family of the victim was

against such love that is why a false case has been filed against him.

However, there are no details that from which date they know each other and how long was the relationship. Once the accused takes up the

burden on him and seeks bail on the ground that he did not use any force and also that the victim accompanied him and, as such, the conduct of the

victim would entitle him for bail. Then in such a situation, the burden also shifts on the accused to explain about the romantic love between him and the

victim. In the present case, except one single line, there is no mention that how long they were in love. Furthermore, the victim in her statement under

Section 164 Cr.P.C., stated that although she had accompanied him and stayed in the room, but she specifically stated on oath that she told the

accused not to do coitus with her, but despite her opposition, he forced himself upon her. Thus, the victim stated on oath about not consenting for sex

with the accused.

Given above, with such kind of pleadings, the accused has failed to make out a case for grant of bail. Consequently, there is no merit in the present

bail petition and the same is dismissed as such. However, the petitioner is at liberty to file fresh petition in the changed circumstances or with better

particulars. Needless to say observations made above will not be considered for any other purpose.

The petition is dismissed.