Pawan Kumar vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail on the grounds

that he is in judicial custody for around seventeen months.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 8.10.2020, Ld.

Special Judge, Bilaspur, HP, dismissed the petition because of the nature and gravity of the offence.

In Para 6 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that on 17.8.2019, the complainant, who is father of the victim, informed the police station about his

minor daughter being abducted and raped. The complainant told that on 14.8.2019 his daughter had gone to the house of his another married daughter.

When in the evening, he asked his married daughter telephonically about the victim, she told him that she has returned back home by bus during day

time at 2.00 p.m. However, since the victim did not reach home, the complainant started her frantic search. On 16.8.2019 at about 8.00 p.m., the

father-in-law and mother-in-law of his married daughter brought the victim to her home. On inquiry from mother of the victim, the victim told her that

on 14.8.2019, when she was returning home through bus, then the brother-in-law (Jeth) of her sister called her on mobile and asked her to get off the

bus at ITI chowk, Bilaspur. On listening to such instructions, she alighted from the bus at ITI Chowk, at which place Pawan met her and asked her to

sit on his scooty and took her to his home at Samletu. The said Pawan made her stay in his home for two days, where on two occasions, he forcibly

established coitus with her. On 16.8.2019 he brought her to his home, from where his parents had dropped the victim back to her home. Based on

these allegations, the Police registered the FIR mentioned above.

The police produced the victim before Judicial Magistrate 1st Class, where her statement under Section 164, Cr.PC was recorded. On 18.8.2019

the police arrested the accused. The police also took the victim to Regional Hospital, Bilaspur, where her medico-legal examination was conducted.

The examining doctor obtained genetic material from her body and also from her privates. After that, the police took the accused to the hospital,

where his genetic material was also obtained. After that, the investigator sent the scientific evidence for testing to RFSL. After the receipt of the

report, the doctor opined that there was no evidence of any semen in the samples and there was nothing to suggest that sexual intercourse had not

been conducted. The doctor further clarified that the sexual intercourse may or may not be happened. The police obtained call details of the accused

and the victim and there was exchange of frequent calls between them and it appears that they were talking to each other for lot of time.

Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Learned

counsel for the petitioner also states that medical evidence does not connect the accused with the victim and the opinion of the doctor is also

conclusive.

On the contrary, Ld. Additional Advocate General contends that the offence is heinous, accused is a risk to law-abiding people, and bail is likely to

send a wrong message to the society.

REASONING:

The status report is not specific about the date of birth of the victim. However, the report under Section 173(2) stands filed despite that the learned

counsel for the petitioner did not place on record any documents relating to date of birth of the victim to get some liverage because of the age. Given

the fact that the accused is a married person and despite that he kidnapped the victim and took her to an isolated place. Merely because the genetic

material did not obtain semen would no way qualify that the victim was not subjected to penetrative sexual assualt.

Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed with

the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document in the Counsel's brief and not on

Court's file.

Learned counsel for the petitioner has not placed reliance on any of the document of Section 161, Cr.PC or receovery memos or statment of other

witnesses, which may make this Court believe that whether the accsued penetrated in her privates and if yes, he ejaculated in the vaginal canal or

used any latex sheath. The burden was on the learned counsel for the petitioner to make out a case for bail.

Learned c ounsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons

mentioned above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution

or the accused.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order from

the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an

officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

In the given facts, this petition is dismissed.