Nikhil Verma vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

FIR No.176/2020, was registered on 27.07.2020 against three accused persons namely Sushant Bhardwaj, Ajay Kumar and Nikhil Verma under

Sections 363, 376, 120B of Indian Penal Code and Section 4, 17 of the Protection of Children from Sexual Offences (POCSO) Act, at Police Station

Dhalli, District Shimla, H.P. Present petition for release on regular bail has been preferred by Nikhil Verma.

On 27.07.2020, a complaint was lodged by the father of the prosecutrix, on the basis of which FIR in question was registered. The gist of the

complaint was that:- 2(i)(a) On 26.07.2020, complainant alongwith his wife had gone to their native village Nalag, Tehsil Sundernagar, District Mandi.

Their son and daughter/prosecutrix were at home in Bhattakuffar, Sanjauli, Shimla.

2.(i)(b) On their return in the evening, the parents did not find their daughter at home. Their son told them that she had left the home at around

5.30.P.M. saying that she was going to the neighbours. The neighbours, however, denied her visiting their place.

2(i)(c) The mobile phone at the complainant’s home reflected many missed calls received from a particular mobile number. On reverting, it was

found that the said number belonged to accused Sushant resident of a village adjoining to the complainant’s native village. The complainant/father

of the prosecutrix called this number and spoke to the prosecutrix, who informed him that she was going with Sushant to her native village to be with

her grand-mother. The complainant/father also spoke to Sushant, who reiterated the same facts.

2(i)(d) Grand-mother of the prosecutrix informed the complainant on phone on 27.02.2020 that the prosecutrix had called her to inform that she would

reach there in a short while. However, neither the prosecutrix reached her native village Nalag nor she reached Bhattakuffar. Apprehending that his

daughter was allured by accused Sushant, the father submitted his written complaint to the police on 27.7.2020. This led to registration of the FIR in

question. During night of 27.07.2020, the prosecutrix was found near a godown of Himachal Pradesh Civil Supplies Corporation at Bhattakuffar,

Sanjauli.

2(ii) Investigation ensued. The MLC of the prosecutrix was:-“possibility of sexual intercourse cannot be ruled outâ€. It also emerged during

investigation that the above named accused persons had taken the prosecutrix in a vehicle No. HP-33C-9073. Vehicle was being used by Sushant

(one of the accused person). Prosecutrix was taken by the accused persons in the aforesaid vehicle to an accommodation belonging to the bail

petitioner (Nikhil) at Kelti, Shimla. During intervening night of 27th and 28.07.2020, the prosecutrix was statedly ravished by accused Sushant in the

aforesaid accommodation belonging to the bail petitioner. All the three accused persons were arrested on 28.07.2020.

Status report also reveals that as per birth certificate, issued by Gram Panchayat Nalag, District Mandi, the date of birth of prosexutrix was

21.10.2003, thus, she was about 16 years and 9 months old on the date of alleged incident. Statement of prosecutrix was recorded on 28.07.2020,

under Section 164 of Code of Criminal Procedure, wherein she inter alia stated that whatever happened between her and accused Sushant, happened

with her own wish. She also stated that she had left her home of her own accord.

Learned Senior counsel for the petitioner submitted that the bail petitioner had no role to play with the alleged offences. He raised the plea of the

false implication and innocence of the bail petitioner. He further submitted that the prosecutrix has levelled no allegations against the bail petitioner in

her statement recorded under Section 164 of Cr.P.C., who at best was an accomplice to the main accused, therefore, further incarceration of the bail

petitioner is not required in the facts and circumstances of the case. Learned counsel further submitted that bail petitioner will abide by all the

conditions, which may be imposed upon him, in case of release on bail and further he will neither influence the witnesses nor temper with the

prosecution evidence in any manner.

Whereas, learned Additional Advocate General opposed the grant of bail considering the nature of allegations levelled against the accused persons

including the bail petitioner. He further stated that in case the Court is inclined to grant bail to the petitioner then that be allowed only after imposing

the stringent conditions upon the bail petitioner.

The status report and the documents made available on the file, prima-facie reflect that the prosecutrix, was aged about 16 years and 9 months at

the time of alleged incident. She had left her parental home of her own accord. On 26.07.2020, her father/complainant spoke to her on mobile phone

of the accused (Sushant). She also statedly called and spoke to her grand-mother on 27.07.2020. No allegations of physical violence by the bail

petitioner have been levelled by the prosecutrix in her statement recorded under Section 164 of Cr.P.C. She rather stated that whatever happened

between her and Sushant during the period in question was out of her own wish. In the given facts and circumstances of the case, without delving

deeper into the statements and the investigation, the above aspects including the nature of allegations do not justify further incarceration of the bail

petitioner during trial. The investigation in this case is almost complete.

Status report does not indicate any previous criminal history of the petitioner. Petitioner is permanent resident of village Kelti, Post Office Bharari,

Tehsil and District Shimla, H.P. therefore, his presence can be secured in the trial. This petition 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.75,000/-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 the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law;

(ii). Petitioner neither himself nor through any of his relations shall threaten the complainant or the prosecutrix in any manner whatsoever. Petitioner

shall not contact the prosecutrix or influence or intimidate her in any manner;

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

(iv). Petitioner will not leave India without prior permission of the Court:

(v). 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:

(vi). In case of launching of prosecution, 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 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 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.

Authenticated copy be supplied to learned counsel for the parties through the Secretary/Private Secretary, in case so required.