Kishori Lal vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The complainant has accused the petitioner of raping his maternal aunt (‘massi’), hence, FIR No.11/2020, under Section 376 of the Indian

Penal Code was registered against him at Women Police Station Chamba, H.P. on 14.8.2020. In relation to this FIR, the petitioner is in custody w.e.f.

14.8.2020. His previous bail petition has been rejected by the learned Sessions Judge, District Chamba on 31.10.2020. Through instant petition, prayer

for his enlargement on regular bail has been made.

2(i) One Surender Kumar lodged a complaint on 14.8.2020 with the averments that after the death of his mother, his father solemnized marriage with

the complainant’s real maternal Aunt (‘massi’) about 24 years ago. The mental faculties of his maternal Aunt (prosecutrix) gradually

started weakening. She did not respond to the medical treatment. As of now, she is not in a position to comprehend her good or bad.

2(ii) On 13.8.2020 at about 8.30 A.M., the complainant was informed by a person belonging to his village that he had over-heard some kids saying that

the petitioner had taken the prosecutrix to pasture lands. Upon hearing this, the complainant alongwith his wife rushed to the spot. On seeing them, the

petitioner fled from the place. The complainant saw his maternal Aunt standing on the road with her salwar open, which was later tied by his wife.

2(iii) Looking at scene, the complainant apprehended that the petitioner had committed rape upon his maternal Aunt.

On the basis of the above allegations, the FIR in question was registered. The petitioner was arrested on 14.8.2020 & ever since, he is behind the

bars.

Learned Senior Counsel for the petitioner strenuously argued that the petitioner is innocent. He has been falsely roped with the offence alleged

against him. The investigation of the case does not implicate the petitioner with the alleged offence in any manner whatsoever. Therefore, he prayed

for petitioner’s release on bail. Learned Senior Counsel further submitted that the bail petitioner will abide by all the conditions, which may be

imposed upon him, in case of his release on bail and further he will neither influence the prosecution witnesses nor temper with the prosecution

evidence in any manner.

The prayer has been strongly opposed by the learned Additional Advocate General on the ground that the petitioner is accused of grave offence

committed upon a mentally retarded lady. Therefore, he does not deserve any leniency and accordingly has prayed for rejecting the petition.

Besides hearing learned counsel for the parties, I have perused the status report as well as the record made available by the respondent/State. It is

evident from the record that before proceeding to record the statement of the prosecutrix under Section 164 Cr.P.C., various questions were put to

her by the learned Judicial Magistrate on 14.8.2020. The prosecutrix remained silent and did not answer any of the questions. Since she did not depose

anything and did not respond to the questions and was alleged to be mentally weak, therefore, her statement under Section 164 Cr.P.C was not

recorded. The prosecutrix was medically examined on 14.8.2020 i.e. on the alleged date of occurrence. Neither any blood nor any injury of any kind

on her body were noticed in her MLC. The MLC also does not speak about the presence of semen on her body. The psychiatrist opinion dated

19.8.2020 on the MLC of the prosecutrix records that there was no document available in respect of her alleged mental illness and further that she

was not in a position to provide any kind of statement regarding the alleged incident. Prosecutrix thereafter was referred to Dr. Rajendra Prasad

Government Medical College Tanda, H.P., for her I.Q. assessment. The doctor had evaluated and assessed her I.Q as “62. which indicate mild

intellectual impairmentâ€. On cumulative basis, considering the investigation carried out, the fact of prosecutrix not responding to questions asked from

her, her I.Q assessed at ‘62 indicating mild intellectual impairment’, her MLC recording neither any injury nor noticing presence of blood on her

person, at this stage, it cannot be said that the petitioner had committed rape upon the prosecutrix. This is something while will have to be proved

during the trial by leading cogent evidence. Solely on the basis of apprehensions of the complainant, the petitioner cannot be kept behind the bars any

further. He has already spent about three months in confinement. Taking into consideration the facts and circumstances of the case, the nature of

allegations levelled against the bail petitioner, considering the status report in its entirety, the MLC report & Psychiatrist opinion, a well as the fact that

the challan stands presented before the learne Special Judge Chamba on 30.9.2020, I am inclined to grant bail in favour of the petitioner. Petitioner is

behind the bars w.e.f. 14.8.2020.

Status report does not indicate any criminal antecedents of the petitioner. He is permanent resident of village Priyungal, P.O. Paluhie, Tehsil and

District Chamba, H.P. therefore, his presence can be secure during the trial. Therefore, this bail application is accordingly allowed.

Bail petitioner is ordered to be released in the above mentioned FIR, subject to his furnishing personal bond in the sum of Rs.50,000/-with one local

surety in the like amount to the satisfaction of the learned trial Court having jurisdiction over the concerned Police Station, subject to the following

conditions:-

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully

cooperate with the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law;

(ii) . Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever;

(iii) . Petitioner will not leave India without prior permission of the Court;

 (iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the

facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer;

(v) Petitioner shall neither contact nor influence nor threaten nor intimidate in any manner the prosecutrix, the complainant and their family members.

(vi). In case of launching of prosecution, the petitioner shall attend the trial on every hearing, unless exempted in accordance with law;

(vii). Petitioner shall inform the Station House Officer of the concerned police station about his places of residence during bail and trial. Any change in

the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail,

PAN Card, Bank Account Number, if any; &

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. Learned Trial Court shall decide the main matter without being influenced by the above observations.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

Copy dasti.