Raja Ram vs State of Himachal Pradesh

Sureshwar Thakur, J.

The instant petition has been filed by the bail petitioner under Section 439 Cr.P.C., for his being released from judicial custody wherein he is presently lodged, for his having allegedly committed offences punishable under Section 4 of POCSO Act and Sections 376 and 506 of the Indian Penal Code, recorded in FIR No. 65/2014 of 8.8.2014, registered with Police Station Kandaghat.

The Investigating Officer is present in Court and has filed a detailed status report. Moreover, the orders rendered by this Court on 23.6.2015, whereby a direction was rendered to the respondent to ensure the carrying out of the necessary/relevant apt tests by the agency concerned for determining the paternity of the child delivered by the minor prosecutrix (aged about 15 years), have come to be complied with. The State Forensic Science Laboratory has, on examination of the apposite and germane material sent to it for examination for facilitating the rendition of an opinion thereupon qua the fact whether the bail applicant is the biological father of the baby girl named Gitanjali, with formidability concluded that the bail applicant is not the biological father of the baby girl named Gitanjali. The rendition of the aforesaid opinion by the FSL, is of immense aid in adjudging the fact whether the allegations constituted in the FIR lodged at the instance of the mother of the prosecutrix acquire at this stage any tenacity or veracity. The contents of the FIR lodged at the instance of the mother of the prosecutrix divulge that the minor prosecutrix was on 2.8.2014 subjected to forcible sexual intercourse at the instance of the bail applicant. Now at this stage, the factum of the minor prosecutrix having delivered on 23.1.2015 a baby girl not fathered by the bail applicant also acquires significance in as much as, in sequel, if a period of 9 months therefrom is counted in reverse then, her conception is to be computed to have occurred either in May or June, 2014. As a further natural corollary then at the relevant time in as much as on 2.8.2014 her pregnancy was approximately three months old. Therefore, a three months old pregnancy is to be construed to be palpably noticeable by her parents. However, there is suppression of the aforesaid fact by the mother of the prosecutrix in her version qua the incident spelt out in the FIR. Resultantly, when the aforesaid palpable fact when would have warranted or enjoined upon the parents to, on its having come to be immediately noticed, seek elicitation from the minor prosecutrix the reason for her carrying a pregnancy, the lack of prompt and immediate elicitation from the minor prosecutrix by her parents the reason for her carrying a palpably noticeable pregnancy, rather theirs concealing it and suppressing it, necessarily constrains a conclusion from this Court that such withholding of or suppression of the aforesaid pivotal fact by the mother of the prosecutrix in the story as propounded by her in the FIR, is connotative of hers taking to prevaricate or twist the true genesis of the occurrence. The further effect thereof is that when the pregnancy of the minor prosecutrix was noticeable much prior to the lodging of the FIR, the lack of prompt efforts on the part of the parents of the prosecutrix to hence lodge an FIR qua the occurrence which begot the unwanted pregnancy, besides when the said delay, since the occurrence of a noticeable pregnancy of the minor prosecutrix has remained un-explained, renders the explanation for the belated lodging of the FIR since the purported ill-fated occurrence on 2.8.2014 till its having come to be reported on 8.8.2014, of its being embedded in the factum of the minor prosecutrix being nervous and remaining morose, to be acquiring the hue of inveracity besides the taint of falsity, especially when for reiteration, hers carrying a noticeable pregnancy enjoined upon her parents to promptly lodge a report qua the occurrence. Now when the opinion rendered by the FSL on its carrying out the apposite DNA test on the material sent to it for examination has conclusively recorded a firm finding that the bail applicant is not the biological father of the female child delivered by the minor prosecutrix. Consequently, the effect thereof construed in entwinement with the fact that the prosecutrix was carrying a three months old pregnancy prior to the occurrence and when the reason for its occurrence remained un-elicited from the prosecutrix nor reported promptly to the police station, concerned, that hence, the development of pregnancy in the womb of the prosecutrix is to be attributed to a person other than the bail applicant. Consequently, the ill-fated occurrence attributing an inculpatory role to the bail applicant appears to be an invention and contrivance besides a thoughtful machination on the part of the complainant to falsely implicate the bail applicant.

Even though, the learned Deputy Advocate General has concerted with vehemence and fervor before this Court that even when the minor prosecutrix had developed or was carrying a pregnancy aged 3 months on the ill-fated day, it cannot be construed to be rendering the incriminatory role imputed to the bail applicant by her mother, to stand negation especially when the MLC prepared by the Dr concerned after carrying out a medical examination of the minor prosecutrix has not ruled out the possibility of sexual intercourse having taken place. However, the above argument succumbs and wanes in the face of the MLC prepared by the Dr. concerned on conclusion of the medical examination of the minor prosecutrix omitting to divulge with formidability besides with conclusiveness that the minor prosecutrix was forcibly subjected to sexual intercourse. With the Dr. having merely opined that the possibility of sexual intercourse cannot be ruled out does not constitute a firm opinion that hence the minor prosecutrix was subjected to forcible sexual intercourse on the ill-fated day. Moreover, even the eruption of an opinion by the doctor qua the possibility of sexual intercourse having taken place rather facilitates an inference that given the pregnancy of the prosecutrix hence was the primadonna cause which propelled the aforesaid opinion. The effect of the above discussion is that prima-facie at this stage the version propounded by the mother of the prosecutrix in the FIR lodged by her qua the incident appears to be wholly concocted and engineered, merely to exculpate the person who rather subjected the prosecutrix to sexual intercourse and who is rather the person who fathered the female child delivered by the prosecutrix. The bail applicant hence can be concluded to have prima-facie not committed any offence under Sections 376 and 506 of I.P.C., therefore, it would be inappropriate to prolong his judicial custody any longer as it would unnecessarily curtail and fetter his liberty.

Moreover, when at this stage no material has been placed on record by the prosecution demonstrating that in the event of bail being granted to the bail petitioner, there is every likelihood of his fleeing from justice or tampering with prosecution evidence, this Court is constrained to afford the facility of bail in favour of the bail petitioner. Accordingly, the bail applicant is ordered to be released on bail from judicial custody, subject to compliance by him with the following conditions:--

"1. That he shall furnish personal and surety bonds in the sum of Rs. 50,000/- each, to the satisfaction of Chief Judicial Magistrate, Solan.

That he shall join the investigation, as and when required by the Investigating agency.

That he 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 the Court or to the Police.

That he shall not leave India without the prior permission of the Court.

That he shall deposit his passports, if any, with the Police Station, concerned.

That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody."

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.