Thuma Ram vs State of Himachal Pradesh

Kuldip Singh, Judge

This is an application u/s 438 Cr.P.C. for releasing the petitioner on bail in FIR No. 126 of 2011 dated 20.9.2011 registered at Police Station, Karsog, under Sections 376, 506 IPC.

It has been stated that the petitioner is living in village Porla, Tehsil Karsog, he was married in January, 2005 and has got two sons. It has been stated that prosecutrix aged about 40 years is also resident of village Porla, she is unmarried and lives with her parents and brothers.

On 20.9.2011 the prosecutrix lodged FIR under Sections 376, 506 IPC against the petitioner at Police Station, Karsog. The petitioner is innocent, he has been falsely implicated in the case on the basis of concocted story in order to settle personal score. The petitioner apprehends his arrest in view of registration of the case.

The petitioner earns his livelihood by working as labourer. In August, 2011 he had gone to Kotkhai to earn his livelihood. He received information that prosecutrix had lodged false case against him. The prosecutrix in order to hide her own wrongs falsely implicated the petitioner. The brother of the prosecutrix arranged a Panchayat in the village for settlement of the dispute. The petitioner was not present in the Panchayat but his family members made it clear to the Panchayat that the petitioner was being implicated in the case on account of enmity.

The custodial interrogation of the petitioner is not necessary. The petitioner is ready to join the investigation. No recovery is to be made from the petitioner. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. A prayer has been made for releasing the petitioner on bail.

The bail application has been opposed by filing status report. It has been stated that prosecutrix came to the Police Station on 20.9.2011 alongwith her aunt (Mami) and brothers Chet Ram and Ramesh Kumar. It has been stated that on 10.3.2011 parents, brothers of the prosecutrix had gone to the house of maternal uncle Karam Singh, prosecutrix was all alone in the house. At about 11.00 p.m. her neighbour Thuma Ram petitioner, who is brother in relation, broke open the wooden bolt placed by the petitioner in the door and entered in her room and committed forcible sexual intercourse with her twice. The petitioner told the prosecutrix not to disclose the incident to anybody otherwise he would kill her. The petitioner thereafter fled away from there. The prosecutrix out of fear concealed the incident from everyone. On 19.9.2011 she narrated the incident to her mother and aunt (Mami) that she had been carrying pregnancy of petitioner for the last six months. On the statement of prosecutrix case under Sections 376, 506 IPC has been registered.

The prosecutrix was got medically examined on 21.9.2011. The prosecutrix was also got checked up from Psychiatrist in IGMC, Shimla and doctor has opined prosecutrix to be suffering from mental retardation. On 9.11.2011 the prosecutrix I.Q. test was got conducted at PGI, Chandigarh. On 30.11.2011 the prosecutrix gave birth to a female child, who died immediately after birth. The blood sample of the child was preserved for DNA profiling. The requisite material was sent to FSL, Junga on 11.12.2011 and result has been received. The petitioner remained under ground for three months to avoid his arrest. It has been stated that investigation in the case is incomplete. The prayer has been made for rejection of the bail application.

Heard and perused the police file. It has been submitted by the learned counsel for the petitioner that petitioner is innocent and from the case projected by the investigating agency, it does not appear to be a case of forcible sexual intercourse. The petitioner and prosecutrix are from same village. The prosecutrix is about 40 years. The investigating agency on one hand has projected the prosecutrix to be a woman suffering from mental retardation but on the other hand registered the case on her statement. It has been submitted that alleged incident took place on 10.3.2011 and FIR has been registered on 20.9.2011. The delay of more than six months has not been explained. The petitioner has been falsely implicated in the case. The custodial interrogation of the petitioner is not necessary. It has come in the status report that the prosecutrix did not report earlier out of fear and threat extended by the petitioner to the prosecutrix at the time of commission of offence.

It is the case of the petitioner that prosecutrix is unmarried. A Panchayat was also called where family members of the petitioner participated and denied the allegations against the petitioner. In view of nature of allegations, it is not a fit case where the petitioner is entitled to indulgence of this Court for granting pre-arrest bail to him at this stage. The petition is, therefore, dismissed.

The observations made in this judgment are for disposal of bail petition only and the same shall not be construed as an expression of opinion on the merits of the case.