Munish Kumar vs State Of Himachal Pradesh

Ajay Mohan Goel, J

ASI Karnail Singh, IO Police Station Dehra, District Kangra, HP, present with case record.

Learned Additional Advocate General has filed the status report, which is perused and ordered to be taken on record.

By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for the grant of regular bail in FIR No. 40 of 2021, dated 14.03.2021, registered under Sections 363, 376, 506 and 201 22 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offices Act, at Police Station Dehra, District Kangra, H.P.

Mr. Ankit Dhiman, learned Counsel for the petitioner has argued that the petitioner is innocent and has been falsely implicated in the case. He has further submitted that even the statement of the victim does not implicates the petitioner with the commission of the offence and further the DNA of the child, to whom the victim has given birth, does not matches with the DNA of the petitioner. Learned Counsel has further submitted that taking into consideration the fact that the petitioner is in custody since March, 2021, the present petition be allowed and the petitioner be ordered to be released o bail.

The petition is opposed by learned Additional Advocate General inter alia on the ground that the offences alleged against the petitioner are both grave and heinous and further the investigation has clearly established link between the petitioner and the offences alleged to have been committed by him. He has further submitted that the DNA samples collected from the site of molestation of the victim are relatable, both to the victim as well as to the petitioner. Learned Additional Advocate General has further submitted that the age of the petitioner at the time when the alleged offence took place, was 13 years whereas the petitioner at that time was matured man of 25 years of age, and therefore, in these circumstances, presently when the matter is at the stage of recording of the statement of the prosecution witnesses, if released on bail, there is each and every possibility that the petitioner may try to influence the witnesses, whose statements are still be be recorded and his release may also be intimidating to the victim and her family . Accordingly he has prayed for dismissal of the bail petition.

I have heard learned Counsel for the parties and also gone through the averments made in the petition as well as status report as also order passed by the learned Court below dated 23. 08.2022, in terms whereof the application filed by the petitioner under Section 439 of the Code of Criminal Procedure has been dismissed.

The petitioner is stated to have been arrested in the present case on 14.03.2021 and the allegation against the petitioner is that on 13.03.2021, according to the complainant, who happens to be the parent of the victim child, the victim went to a shop to purchase some eatables (kurkure), at around 6:30 p.m. and in the meanwhile, a boy came on a Motorcycle and took the victim away with him. An alarm was raised by the shopkeepers, whereupon the complainant came out of her house. In the meanwhile, kidnapper took the child on his Motorcycle towards a colony. The complainant also called her husband and both of them searched for the child in the neighbourhood and in the relations but the victim could not be traced. Thereafter, FIR was got registered by the complainant and in the course of investigation, the victim was recovered from a Rain Shelter from Dehra bus stand. The victim was identified by her mother. Statement of the complainant was recorded and this led to arrest of the petitioner. The offences alleged to have been committed by the petitioner are under Sections 363, 376, 506 and 201 of the IPC and Section 4 of the POCSO Act. It is not in dispute that whereas the petitioner at the relevant time was 25 years old, the victim was only 13 years old. A careful perusal of the status report demonstrates that some of the DNA samples, which were collected by the investigating agency, are relatable to the petitioner also, though DNA of the child, to whom birth was given by the victim, does not matches with the petitioner. Be that as it may, the Court is not making any further observation in this regard but suffice it to say that as the offences alleged to have been committed by the petitioner, are both grave and heinous and further as the age of the victim at the relevant time was 13 years as compared to the the petitioner, who was 25 years old, and further also taking into consideration the fact that the trial is at the stage of recording of the statements of the prosecution witnesses, this Court is of the considered view that no indulgence can be shown to the petitioner under Section 439 of the Code of Criminal Procedure. Accordingly, this petition being devoid of merit is dismissed.