Kuldeep Kumar vs State of Himachal Pradesh

Kuldip Singh, Judge

This is an application u/s 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 105 of 2011 dated 21.5.2011 registered at Police Station, Sarkaghat, under Sections 363, 366, 376, 342, 506 and 120-B IPC.

It has been stated that the petitioner has been falsely implicated in the case. He was arrested on 9.8.2011 and since then he is in custody. The investigation in the case is complete and report u/s 173 Cr.P.C. has been filed against the petitioner, his parents and one Vinod Kumar.

It has been stated that prosecutrix is major and had accompanied the petitioner on her free will and stayed with him for more than two months. The story put forth by the prosecution is highly improbable and untrustworthy. The prosecutrix has changed her stand under the pressure of her parents and community. The petitioner belongs to Scheduled Caste whereas the prosecutrix belongs to Rajput community. There is no legally acceptable evidence on record against the petitioner.

The petitioner had filed bail application which was dismissed as withdrawn on 18.10.2011. The petitioner filed another bail application which has been dismissed by the learned Additional Sessions Judge, Mandi on 30.11.2011. The petitioner is ready to furnish the bail bonds in accordance with the directions of this Court. The further detention of the petitioner in the case is not necessary. The prayer has been made for releasing the petitioner on bail.

The bail application has been opposed by the State on the basis of status report. It has been stated that the case has been registered on 21.5.2011 on the basis of statement of Rajinder Kumar. He has stated that his elder brother Joginder Pal has four daughters and two sons, eldest daughter is about 17 years and is residing with the complainant. It has been stated that the prosecutrix had appeared in +2 examination and since 20.5.2011 the prosecutrix has not returned home and her mobile phone is switched off. On 21.5.2011 he came to know that petitioner had also been missing since the previous day and his phone is also switched off. The complainant has suspected that prosecutrix has been kidnapped by the petitioner.

The prosecutrix in her statement has stated that petitioner forcibly kidnapped her, she became unconscious. On regaining consciousness she found herself in a room, petitioner threatened her that he would kill her and since May, 2011 to August, 2011 the petitioner had been committing forcible sexual intercourse with her under the threats. The petitioner would put lock outside whenever he left the room. The parents of the petitioner had been visiting him. They also asked the petitioner to spoil the petitioner in the society so that she is forced to marry with the petitioner.

The petitioner had taken a room on rent of Smt. Jindo alias Shakuntla Devi at Chandigarh, who took the prosecutrix to be the wife of the petitioner. On one day, the prosecutrix narrated the story to Smt. Shakuntla Devi, who contacted the uncle of the prosecutrix. In this way, the relatives of the prosecutrix and police took back the prosecutrix on 9.8.2011 and petitioner was arrested, who is in custody since then. The report u/s 173 Cr.P.C. has been submitted on 4.11.2011 and next date is fixed in the Court of Sessions Judge, Mandi on 7.1.2012. The prayer has been made for rejection of the bail application.

Heard and perused the police file. The prosecutrix in her statement u/s 161 Cr.P.C. has stated that on 19.5.2011 petitioner met her, switched off her mobile and broke the SIM. He put his handkerchief on her mouth, she had feeling that there was something in the handkerchief and as a result of which she became unconscious and when she regained consciousness she found herself in a room. The petitioner did not tell her where she was even on her asking. He threatened and committed sexual intercourse with her several times against her wish. The petitioner had been locking her inside the room whenever he left the room. On one day, she found opportunity to talk to Smt. Jindo alias Smt. Shakuntla Devi, landlady and narrated the story to her and then her relatives and police came and took her back on 9.8.2011.

Smt. Jindo alias Smt. Shakuntla Devi has stated that she had rented out one room to petitioner about two months ago. The prosecutrix used to remain in the room, she thought that probably prosecutrix was of shy nature. One day prosecutrix narrated the entire story to her, she contacted the uncle of the prosecutrix. On 9.8.2011 father, uncles and police came and took back the prosecutrix. Vicky Kumar in his statement u/s 161 Cr.P.C. has stated that prosecutrix and he were engaged and their marriage was fixed after two months. On 20.5.2011 the grand-father of the prosecutrix asked him whether prosecutrix had met her at Dharampur, he answered in negative. On this, grand-father of the prosecutrix told that in the morning the prosecutrix had gone to Dharampur for purchasing the books alongwith her friend but had not returned. He had seen earlier petitioner talking with prosecutrix twice, thrice. He even asked the petitioner why he had been talking to prosecutrix when he and prosecutrix had been engaged.

It has come in the order dated 30.11.2011 that the date of birth of the prosecutrix as per school certificate is 18.7.1993. The prosecution has also collected the birth certificate from the Gram Panchayat in which the date of birth of the prosecutrix has been shown 21.12.1991. It emerges from the material on record that the prosecutrix disappeared on 19.5.2011 when she had gone to Dharampur. It has not been pointed out whether actually some person had seen the petitioner exerting force for kidnapping the prosecutrix in the manner as claimed by the investigating agency. It has also not been pointed out at what place prosecutrix regained consciousness when she was allegedly taken from Dharampur to Chandigarh and when she regained consciousness whether she raised any hue and cry against her forcible kidnapping. It has come in the prosecution evidence that prosecutrix stayed with petitioner from May, 2011 to 9.8.2011 when she was taken back by her parents and police. Smt. Jindo alias Smt. Shakuntla Devi, landlady of the prosecutrix in her statement u/s 161 Cr.P.C. has not stated that petitioner used to lock the prosecutrix in the room in his absence which has been stated by the prosecutrix.

It appears from the statement of Vicky Kumar u/s 161 Cr.P.C. that petitioner and prosecutrix were known to each other before the alleged date of occurrence. The prosecutrix at the relevant time was studying in +2 and it is reasonable to infer that she knew what she was doing. The prosecutrix is not an illiterate girl. On the basis of Panchayat certificate as observed by the learned Additional Sessions Judge the date of birth of the prosecutrix is 21.12.1991, that means that on the date of occurrence, on the basis of such certificate, the prosecutrix was +18 years. But actual date of birth of the prosecutrix is yet to be ascertained which will be ascertained during the trial. There are in all four accused, out of them, three have already been released on bail. The investigation in the case is complete and challan has been submitted in the Court. The prosecution has shown apprehension that in case petitioner is released on bail, he may influence the prosecution witnesses by extending threats and inducements, but such apprehension is without any corroborative material on record. The trial of the case will take some time. No purpose will be served to keep the petitioner in jail for indefinite period. In these circumstances, the petitioner has made out a case for grant of bail.

In view of above, petition is allowed. The petitioner is ordered to be released on bail in FIR No. in FIR No. 105 of 2011 dated 21.5.2011 registered at Police Station, Sarkaghat, under Sections 363, 366, 376, 342, 506 and 120-B IPC, on his furnishing personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of Judicial Magistrate at Sarkaghat with the condition that the petitioner shall not hamper the investigation or terrorise the prosecution witnesses in any manner.

The observations made in this judgment are for disposal of bail petition only and the same shall not be construed as an expression of opinion on the merits of the case.