Om Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, for enlarging him on bail, by invoking provisions of Section 439 Code of Criminal Procedure (in short

‘CrPC’), in case FIR No. 88 of 2020, dated 21.11.2020, registered in Police Station Pachhad, District Sirmaur, HP, under Section 376 of the

Indian Penal Code (in short ‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as

‘POCSO Act’ in short).

Apart from filing status report, record was also produced. Learned Deputy Advocate General has placed on record photocopies of relevant

statements of complainant, victim, father of accused and DNA profiling report of State Forensic Science Laboratory.

Prosecution case in nutshell is that complainant Rajesh Kumar (father of victim) and Matka Ram (father of accused), are related to each other as

the daughter of Matka Ram is married to Tapender Singh, who is real brother of complainant Rajesh Kumar. Members of both families, including

victim and other children, being closely related to each other, had been visiting each other’s houses and staying there for considerable time,

sometimes months together.

Victim, also used to visit and stay in the house of Matka Ram frequently. In April, 2020, she had visited the house of Matka Ram for two â€" three

days and after staying for two and a half months at her home she had again gone to the house of Matka Ram.

On 16.11.2020, when victim came back home, her mother had suspected that she (victim) was pregnant and it was disclosed by mother to father

(complainant). Upon inquiry by mother, victim had disclosed that petitioner/accused had developed physical relations with her, causing her pregnant.

Age of victim at that time was mere 15 years. In these circumstances, father of the victim had approached the police and lodged the complaint, on the

basis of which FIR, in question, has been registered on 21.11.2020.

During investigation, victim alongwith her mother was taken to Medical College, Nahan, for medical check-up but the victim and her mother, in

writing, had refused to undergo medical check-up. Pregnancy of victim was verified through UPT Test and she was found carrying pregnancy of 16

to 18 weeks.

Statement of the victim was also recorded under section 164 Cr.PC before Magistrate wherein she had stated that she was pregnant and no one

had violated her person forcibly, and everything had happened according to her desire. To a question that who caused pregnancy, she had disclosed

that it was petitioner, but with clarification that her parents had not sent her forcibly to the home of Om Singh but she had gone to the house of Om

Singh swayed by her wish and desire and she had refused to undergo medical check-up for the reason that when it had come to light that she was

pregnant, then there was no purpose of undergoing medical check-up.

Victim was found to be minor and, therefore, a case under Section 376 of IPC and Section 4 of POCSO Act was made out and, therefore,

petitioner was called for interrogation who had admitted physical relations with the victim and thus was arrested by the police on 22.11.2020. Since

then, after remaining in police custody, he is in judicial lock-up. Date of birth of the petitioner is 18.03.2002, and therefore, at the time of commission of

the alleged offence in April 2020, he had just completed 18 years as his age at that time was 18 years and 15 days.

Learned counsel for the petitioner submits that petitioner as well as victim are teenagers and, though the petitioner, for completing 18 years of age

in March, 2020, has been considered to be major, but fact remains that for a few days he would have been treated as child in conflict with law, and in

such eventuality he would have been handed over to his parents or kept in child care home instead of sending him behind bars. It is further submitted

that at this juncture of age instead of keeping the petitioner in jail, he would have been provided counselling alongwith victim as both have developed

physical relations, probably for over powered by physical attraction during their closeness while residing in one and the same house, and also for liking

each other, as petitioner was wishing and still ready to marry victim but for her age he has landed in the jail.

Learned Deputy Advocate General has submitted that petitioner has spoiled the life of a minor and has committed a heinous crime and, therefore,

he is not entitled for bail.

Considering principles and factors relevant to be considered at the time of deciding bail application with reference to aforesaid facts and

circumstances placed before me, and submissions made by learned counsel for the petitioner as well as learned Additional Advocate General, but

without commenting on merit, on the contentions of rival parties, I am of the considered opinion that petitioner is entitled for bail, at this stage.

Accordingly, present petition is allowed and petitioner is ordered to be released on bail in case FIR No. 88 of 2020, dated 21.11.2020, registered in

Police Station Pachhad, District Sirmaur, HP, on his furnishing personal bond in the sum of `70,000/- (rupees seventy thousand only), with one surety

in the like amount, to the satisfaction of the concerned Trial Court/Special Judge, within two weeks from today, upon such further conditions as may

be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure presence of petitioner/accused at the time

of trial and also 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;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by

prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner 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 and thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem necessary 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.

Petition is disposed of in aforesaid terms.

Petitioner is permitted to produce a copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, before the

authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High

Court.

Dasti copy on usual terms.