Naresh Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

This petition has been filed, seeking grant of regular bail to the petitioner, under Section 439 Cr.P.C., in case FIR No.40/2018 dated 16.08.2018, registered in Police Station Renuka Ji, District Sirmour at Nahan, H.P., under Sections 363 and 376 of the Indian Penal Code (hereinafter referred to as 'IPC' in short) and Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' in short).

Status report stands filed alongwith documents i.e. statements of victim recorded under Sections 161 and 164 of Code of Criminal Procedure (in short Cr.P.C.) as well as recorded during trial and reports of State Forensic Science Laboratory (SFSL) with Medico Legal Certificate (MLC) of victim.

It is the case of prosecution that victim, below 18 years of age, was violated by the petitioner. At that time, as per record, petitioner was 19 years of age.

In her statement, recorded under Section 164 Cr.P.C., victim has stated that on 15.08.2018 at about 8.00-9.00 pm, she had gone to Dhanoi Forest and had called petitioner on the road through Mobile call and thereafter without informing the family members, had fled to the Forest and on next day, both of them, had gone to Kala Amb in a bus and stayed in the Forest of Moginand and on 17.08.2018, Naresh Kumar had developed physical relations with her and on 18.08.2018 they had come to Nahan in a bus.

In her statement, recorded under Section 161 Cr.P.C., victim had stated that on 15.08.2018 at about 8.00 pm she had called Naresh Kumar and alongwith him went to Dhanoi Forest and on next day they went to Nahan and Kala Amb and next day they went to Trilokpur and during these days they stayed in the Forest Kala Amb, Trilokpur and Moginand, and thereafter on 18.08.2018 both of them, went to approach the Court at Nahan, where they were apprehended by the police and her statement was recorded.

At the time of deposition in the Court, victim has omitted to say that she had herself called the accused, rather she has stated that accused had telephonically called her.

She was also subjected to Medico Legal Examination on 19. 08.2018, on which date, Doctor had opined that final opinion would be given after receiving report of analysis from SFSL.

From the report of SFSL, human semen has been detected in the Salwar of the victim and underwear of petitioner. In the analysis for DNA profiling, it has been concluded that mixed DNA profile was obtained from Salwar of the victim, which matched completely with DNA profile obtained from blood of victim and was inconsistent with DNA profile obtained from blood of petitioner Naresh Kumar.

On previous date, it was contended on behalf of the petitioner that immediately after the incident, victim had solemnized marriage with someone else and thereafter she has been residing with third person.

Police Officer, who is present in office of Advocate General, submits through Video Conferencing that during verification of whereabouts of victim, it has come in the notice from the Gram Panchayat Pradhan, Jamu Koti that victim had disappeared from home three months back and now has been found to be residing with one Kamal Chand son of Tula Ram, resident of Village Kasar, Tehsil Renuka Ji and, whereas her mother has expressed her ignorance about solemnization of marriage by her daughter, but she has admitted that victim is residing with Kamal Chand and wants to solemnize marriage with him.

Considering entire given facts and circumstances, age of the victim as well as the petitioner at the time of commission of offence, and the manner in which offence is alleged to have been committed and also conduct of the petitioner that he himself had brought the victim to the Court and also that he is behind the bars w.e.f. 18.08.2018 and further that the statements of victim and her mother have already been recorded, petitioner deserves to be enlarged on bail at this stage.

Accordingly, petition is allowed and petitioner is ordered to be released on bail in case FIR No.40 of 2018 dated 16. 08.2018, under Sections 363 and 376 IPC and Section 4 of POCSO Act, registered in Police Station, Renuka Ji, District Sirmaur at Nahan, H.P., on his furnishing personal bond in the sum of `30,000/- with one surety in the like amount, to the satisfaction of trial Court, subject to following conditions:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail; and

(vii) that he shall not leave the territory of India without prior information. He shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice.

In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Registry to transmit a copy of this order to the trial Court through E-mail.

Copy dasti.