Sushil Kumar vs State Of Himachal Pradesh

Chander Bhusan Barowalia, J

The instant bail application has been maintained by the petitioner under Section 438 of the Code of Criminal Procedure for grant of bail, in the event

of his arrest, in case FIR No. 34 of 2021, dated 03.04.2021, under Section 376 IPC, registered at Police Station Dharampur, District Solan, H.P.

As per the petitioner, he is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution

evidence nor in a position to flee from justice, so he may be released on bail.

Police report stands filed. As per the prosecution, on 03.04.2021, the prosecutrix (name withheld) made a written complaint to the police alleging

that she was unemployed and in search of a job. She has further stated that for job she came in contact with one Sushil Kumar (petitioner herein). The

petitioner asked the prosecutrix to bring her CV (Curriculum Vitae) and thereafter she was given a job for selling houses. The prosecutrix was shown

photographs of a house, which she was asked to show to the clients. On 03.04.2021 the prosecutrix was asked to accompany the petitioner to Kasauli

and while they were en route, the petitioner drove to a hotel and told that clients would coming in the hotel. The petitioner took the prosecutrix to a

hotel room, where he committed rape on her without her consent and also gave beatings to her. Upon the complaint, so made by the prosecutrix, the

police registered a case and the investigation ensued. The police got the prosecutrix medically examined, statements of the witnesses were recorded

and spot map was prepared. Police visited the spot of occurrence and effected relevant recoveries. Police also procured the CCTV recording of the

homestay, where offence is alleged to have been committed by the petitioner. The petitioner joined the investigation and was medically examined.

CCTV recording reveals that when the petitioner entered the homestay in question, after few minutes, an unknown person came and started talking

with the receptionist and also told him that he is husband of the prosecutrix, who is staying in Room No. is 101, whereas the prosecutrix divulged that

she was alone. It has further come in the investigation that on the day of occurrence, the petitioner and the prosecutrix stayed briefly in a room of a

homestay for approximately 20 to 25 minutes and even in the interregnum the petitioner called the homestay staff for fixing the problem of TV, so the

Manager of the homestay went to the room of the petitioner, where he was present alongwith the prosecutrix and the call records of the prosecutrix

demonstrate that she used her mobile phone from inside the room for approximately seven minutes. CCTV footage further reveals that thereafter one

Bhaan Singh, who was introducing himself as husband of the prosecutrix to the hotel staff, went to the room of the petitioner and picked up a quarrel

with him. In the CCTV footage it is seen that a scuffle ensued between the petitioner and said Bhaan Singh, so the prosecutrix intervened and many

times she is seen holding the hands of Bhaan Singh. After the scuffle, the petitioner went in his vehicle and prosecutrix, Bhaan Singh and one more

person chased his vehicle by their vehicle, having registration No. CH01BG-5967. During the course of further investigation, police found that the

prosecutrix has deliberately concealed the identity of her boyfriend, who picked up a quarrel with the petitioner, and calculatingly she misled the police

on many facets of the investigation. As per the police, no evidence qua the alleged offence has yet come in the investigation, so the police, on the basis

of the material, which has come on record, will soon file a cancellation report in the learned Trial Court.

I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, including the

police report, carefully.

The learned counsel for the petitioner has argued that the petitioner is innocent and he has been falsely implicated in the instant case. He has

further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further

argued that the police investigation clearly reveals that it was the petitioner, who is being victimized in the instant case and there is nothing on record

which could suggest that he had committed sexual assault on the prosecutrix. He has prayed that the bail application be allowed in the above backdrop

and in the wake of the investigation carried-out by the police. On the other hand, learned Deputy Advocate General, after perusing the police report,

only prayed that appropriate order may be passed in the matter.

At this stage, considering the manner in which the offence is alleged to have been committed, the fact that during the course of investigation the

prosecutrix clearly tried to mislead the investigation and she also concealed material facts, considering the revelations of CCTV footage and call

records of the prosecutrix, her boyfriend and others, the fact that no evidence has come on record against the petitioner in the police investigation qua

the perpetration of the alleged crime, police will be filing the cancellation report in the learned Trial Court soon, the fact that the petitioner, upon the

order of this Court joined the police investigation and continuously co-operating in it, he is neither in a position to flee from justice nor in a position to

tamper with the prosecution evidence, the custody of the petitioner is not at all required by the police, the fact that sending the petitioner behind the

bars will not serve any fruitful purpose and also considering all the facets of the case and without discussing them elaborately, this Court finds that the

present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of his arrest, in this case, is required to be exercised in his

favour. Accordingly, the petition is allowed and it is ordered that the petitioner, in the event of his arrest, in case FIR No. 34 of 2021, dated 03.04.2021,

under Section 376 IPC, registered at Police Station Dharampur, District Solan, H.P., shall be released on bail forthwith in this case, subject to his

furnishing personal bond in the sum of Rs.10,000/- (rupees ten thousand) with one surety in the like amount to the satisfaction of the learned Trial

Court. The bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner will 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/her from disclosing such facts to the Investigating Officer or Court.

In view of the above, the petition is disposed of.

Copy dasti.