Sehzaad @ Sulla vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner is a co-accused in FIR No.164/2019, dated 18.10.2019, registered under Sections 366, 376D, 201, 506, 323 and 34 of the Indian Penal Code at Police Station Majra, District Sirmour. Through instant petition under Section 439 of the Code of Criminal Procedure, prayer for enlargement on bail has been made.

Heard learned counsel for the parties and gone through the status report as well as the documents and statements placed on record by the respondent-State.

The FIR was registered on the basis of a complaint lodged on 18.10.2019 by one Imran Ali, father of the prosecutrix. He complained that:-

3(i). On 13.10.2019 at around 11:00 pm, his daughter (prosecutrix) went outside her home for answering the call of nature. She was forcibly picked up by the petitioner alongwith one Bajjar @ Sher Khan. Her mouth was gagged and she was taken to the petitioner's room, where she was forcibly rapped by him, while co-accused Bajjar @ Sher Khan stood guard. The prosecutrix thereafter was thrown in her room. She sustained serious injuries. She was taken to Civil Hospital Paonta Sahib on 13.10.2019, from where she was referred to Zonal Hospital Nahan.

After gaining consciousness on 16.10.2019, the prosecutrix narrated the incidents of 13.10.2019 to her mother. She was referred by Zonal Hospital Nahan to PGI Chandigarh on 18.10.2019. Since the prosecutrix was not in a position to walk, therefore, her father brought her to Paonta Sahib.

3(ii). On the basis of above complaint, the FIR was registered. Prosecutrix was medically examined and her statement under Section 164 of the Code of Criminal Procedure was also recorded. Looking into the medical condition of the prosecutrix and the fact that she had already been referred by Zonal Hospital Nahan to PGI Chandigarh, investigating agency got the prosecutrix admitted in PGI Chandigarh for her further treatment, where she remained admitted from 20.10.2019 to 02.11.2019.

3(iii). On 19.10.2019, the petitioner was arrested from Dehradun. Co-accused Bajjar @ Sher Khan was arrested on 19.10.2019 from District Ambala, Haryana.

3(iv). A previous bail petition preferred by the petitioner was dismissed by the learned Trial Court on 23.01.2020. Cr.MP(M) No.181 of 2020, preferred by the petitioner before this Court, was withdrawn after hearing the matter at length on 30.01.2020.

Learned counsel for the petitioner submitted that as per the report of the State Forensic Science Laboratory, Junga dated 16.12.2019, semen was not detected on the exhibits, i.e. clothes of the prosecutrix, and it cannot be said that the petitioner was guilty of committing rape on the prosecutrix, therefore, prayed for enlargement of the petitioner on bail. The prayer is vehemently opposed by the learned Additional Advocate General by contending that there is sufficient evidence available on record to prove alleged guilt of the petitioner and considering the same, it cannot be said at this stage that the petitioner is not guilty of the offence alleged against him. Considering the gravity of the charges levelled against the petitioner, he does not deserve to be enlarged on bail. Even otherwise there is every chance of his intimidating the prosecutrix as well as the prosecution witnesses.

The incident is said to have happened on 13. 10.2019. The prosecutrix remained admitted in hospitals either at Civil Hospital Paonta Sahib, Zonal Hospital Nahan or PGI Chandigarh w.e.f. 13.10.2019. On 18. 10.2019, the instant FIR was registered on the basis of complaint lodged by her father, whereafter prosecutrix remained under treatment at PGI Chandigarh as an indoor patient w.e.f. 20.10.2019 to 02.11.2019 on account of serious and grievous injuries suffered by her in the alleged incident. I have also gone through the statement of prosecutrix recorded under Section 164 of the Code of Criminal Procedure as well as her medical examination report. At this stage, solely relying upon the report of State Forensic Science Laboratory, Junga, it cannot be said that the prosecutrix was not raped by the accused. The arguments raised by learned counsel for the petitioner are the questions, answers to which are to be determined during trial. Having gone through the status report, the statement of the prosecutrix, the documents placed on record and the mode & manner of commission of alleged offence, I am not inclined to grant bail to the petitioner at this stage. Therefore, the other points raised by learned counsel for the petitioner are not being referred to herein lest it causes prejudice to the case of parties.

In view of the above, there is no merit in the instant bail petition and the same is dismissed at this stage reserving liberty to the petitioner to move afresh at an appropriate stage in accordance with law, if so advised. Pending miscellaneous application(s), if any, also stand disposed of.