Madan Lal vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner is the first cousin of the prosecutrix. He is in custody w.e.f. 30.08.2019 in FIR No.16/2019, dated 29.08.2019, under Sections 341, 376(2)

(f), 376(3) & 506 of the Indian Penal Code and Section 6 of the POCSO Act, registered at Women Police Station Bilaspur, District Bilaspur. Prayer

in this petition is for grant of regular bail.

Heard learned counsel for the parties and gone through the status report as well as the relevant records and statements made available by the

parties.

Prosecution case against the petitioner is that on 29.08.2019, prsoecutrix aged 16 years, came to the Police Station alongwith her mother and lodged

a complaint to the effect that:-

3(i). On 27.08.2019 at about 3:00 pm, she was cutting grass in the fields near to her home, when petitioner suddenly appeared there. He is son of her

real paternal uncle (taya). The petitioner held the prosecutrix by her arm and made her to lie down in the fields. He opened her Salwar and raped her

there. She was threatened by the petitioner not to disclose the incident to anyone. Prosecutrix thereafter carried the grass to her home.

3(ii). The petitioner did not speak about the incident to her mother that day. She washed her clothes on 28.08.2019 and disclosed the happenings of

27.08.2019 to her mother. Whereafter her mother called the parents of the bail petitioner as well as the Ward Member-Mukhtiar Singh. The petitioner

denied having committed the alleged offence. Thereafter, the complaint was lodged with the Police.

On the basis of above allegations, instant FIR was registered. Petitioner was arrested on 30.08.2019.

4(i). According to the status report, final opinion on the MLC of the prosecutrix was:- “Since the semen has not been detected on the present day

samples of female But still cannot be said that whether the victim was sexually assaulted or not/or intercourse has occurred b/w victim.†The date of

birth of prosecutrix as per Date of Birth Certificate issued by Gram Panchayat Rohal was 18.01.2004.

4(ii). In her statement recorded on 30.08.2019 under Section 161 of Code of Criminal Procedure, the prosecutrix had, inter-alia, stated that she had

gone to the fields on 27.08.2019 at around 3:00 pm; The fields were adjacent to her home; Petitioner had given a bite on her left cheek; The forcible

sexual intercourse there was associated with bleeding; The next day her mother saw her clothes in the bathroom and thereafter the prosecutrix

disclosed the happenings of the previous day to her mothe; Immediately afterwards, prosecutrix washed her clothes.

4(iii). In her statement recorded on 31.08.2019 under Section 164 of Code of Criminal Procedure, the prosecutrix stated that prior to this incident, the

petitioner had never committed such like acts. It was further stated that she was not allowed to speak by the petitioner. She also stated that on

28.08.2019, she had disclosed the entire incident to her mother and then her mother saw her clothes, whereafter parents of the petitioner were

summoned by her mother.

4(iv). In her statement recorded during the trial on 18.06.2020, the prosecutrix admitted that:- the fields where she had gone for cutting the grass on

27.08.2019 were just adjacent to her home; These fields were frequented by the general public; Wife of one Mukhtiar Singh was also in her fields and

cutting the grass; On 27.08.2019, her own father was sitting on a cot near to their kitchen and the place of occurrence was visible from the kitchen

yard, where her father was lying on the bed on the date of incident; The spot was also visible from the site of a hand pump. The prosecutrix has

further stated that she was having sickle in her hand when she went to the fields for cutting the grass. As per her own version, she did not try to set

herself free from the clutches of the accused. She also stated that her mouth was gagged by the petitioner. She admitted that her family was not on

speaking terms with the family of the bail petitioner.

A previous bail application preferred by the petitioner has been turned down by the learned Special Judge, District Bilaspur on 10.07.2020, primarily

on the ground that the petitioner was a close relative of the victim, living in the same vicinity, therefore, the gravity of the alleged offence had

increased and the offence falls within the definition of aggravated penetrative sexual assault.

Learned counsel for the petitioner has forcefully argued for releasing the petitioner on bail. He has referred to different statements of the

prosecutrix pointing out inconsistencies therein, which according to him, are relevant and reflect false implication of the petitioner. He has further

submitted that though the trial of the case is yet going on, however, statements of the material witnesses including that of prosecutrix have already

been recorded. Learned counsel for the petitioner also submitted that the father of the petitioner and prosecutrix are real brothers. The grandmother of

the petitioner has executed a will in favour of father of the petitioner, excluding her other children as well as the father of the prosecutrix. On account

of the fact that the entire property has been bequeathed in the name of father of the petitioner, instant false FIR has been registered against him.

Learned counsel has further submitted that the petitioner will neither hamper the trial nor will temper the prosecution evidence or will influence the

prosecution witnesses in case of grant of bail and will abide by all the conditions imposed upon him by this Court in case of grant of bail. Learned

Additional Advocate General has opposed the grant of bail considering the gravity of the offences alleged against the petitioner.

At this stage, though it is not desirable to go into the prosecution evidence and statements lest it may cause prejudice to the case of either of the

parties, however, some relevant aspects which for the purpose of adjudicating this bail petition need noticing are that: -

7(i). Prosecutrix in her statement recorded during the trial has clearly admitted that the fields, where she had gone for cutting grass, were just adjacent

to her home. She has further deposed that those fields were frequented by general public. It is also her version that on 27.08.2019, i.e. the date of

alleged offence, wife of one Mukhtiar Singh was also cutting grass in her fields. She has further stated that on the date of alleged occurrence, her

father was sitting on a cot near to their kitchen and that the alleged spot of occurrence was visible from the kitchen yard, where her father was lying

on the bed. She has also stated that the alleged spot of occurrence is also visible from the site of a hand pump. In view of the admitted visible vicinity

of the spot of occurrence from the kitchen yard where father of the prosecutrix was there and in view of the admitted factum of fields in question

being frequented by general public and in view of stated presence of wife of Mukhtiar Singh nearby the spot, it becomes intriguing that the prosecutrix

had admittedly not cried out for any help whatsoever. She has stated that she could not speak because her mouth was gagged, however, it, prima

facie, appears to be an improved version of facts as no such allegation was levelled by her either in her complaint or in the FIR or in the statements

recorded under Sections 161 and 164 CrPC.

7(ii). Prosecutrix has further admitted in the cross-examination that she was carrying a sickle in her hands while going to the fields, yet she as per her

own version, did not try to use it against the petitioner. She also stated that she did not try to set herself free from the clutches of the accused. This

version all becomes quite surprising considering the fact that her house was not only adjacent to the spot of occurrence, but her own father was not

only just sitting across but was within the visible range from the spot of occurrence.

7(iii). As per statement of prosecutrix recorded under Section 161 CrPC, alleged forcible intercourse was associated with bleeding. Her clothes were

seen by her mother the next day in the bathroom. Whereafter she disclosed the happenings of the previous day to her mother. Statedly immediately

thereafter, the prosecutrix washed her clothes. The act of washing of her clothes is somewhat differently described in different statements and

assumes significance. In the MLC of the prosecutrix, the opinion of the Doctor is that “Since the semen has not been detected on the present day

samples of female But still cannot be said that whether the victim was sexually assaulted or not/or intercourse has occurred b/w victim.â€​

7(iv). No doubt the trial is presently going on, however, out of fourteen prosecution witnesses, seven witnesses have already been examined and two

have been given up by the prosecution. Statement of the prosecutrix, as observed above, has already been recorded. Conclusion of trial may take time

in current COVID-19 scenario. Considering the above noticed aspects, nature of allegations, without delving further and deeper into the statements of

prosecutrix as well as other evidence and the statements of other witnesses and considering the fact that the petitioner is behind the bars for the last

about one year, no fruitful purpose will be served by keeping the petitioner behind the bars any further. Petitioner is the resident of Village Nagraon,

Post Office Rohal, Tehsil Jhandutta, District Bilaspur, HP and, therefore, his presence can be secured in the trial. Accordingly, present petition is

allowed.

The petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.75,000/- (Rupees Seventy Five

Thousand only) with one local surety in the like amount to the satisfaction of the learned trial Court having jurisdiction over the Police Station

concerned, subject to the following conditions:-

(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

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

(iii). The petitioner shall not contact the complainant, threaten or browbeat him/her or to use any pressure tactics in any manner whatsoever.

(iv). The petitioner will not leave India without prior permission of the Court.

(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). The 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.

(vii). Petitioner shall inform the Station House Officer of the concerned police station about his place 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 matter without being influenced by any of the observations made above.

The parties/competent authority shall not insist upon for obtaining certified copy of this order and shall download the same from the website of the

High Court.

However, the Registry is directed to send copy of this order to learned counsel for the parties through e-mail subject to furnishing e-mail addresses by

them, if so required.

Authenticated copy be also supplied by the Secretary, in case so requested by the learned counsel for the parties.

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