Vinay Kumar vs State Of H.P

@JUDGEMENTTAG- JUDGEMENT

Virender Singh, J

Applicant-Vinay Kumar has filed the present application, under Section 439 of Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’), with a prayer to release him on bail, during pendency of the trial, in case FIR No.189 of 2023, dated 05.09.2023, registered, under Sections 376 and 506 of the Indian Penal Code (hereinafter referred to as ‘the IPC’) and Sections 4 & 6 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘the POCSO Act’), with Police Station, West Shimla, District Shimla, H.P.

According to the applicant, he is permanent resident of the address, as mentioned in the application, and is an innocent person and he has falsely been implicated, in this case.

According to him, he is not involved in the commission of offences, for which, he has been arrested, by the police. The case of the police is stated to be false and fabricated one. He is stated to be in judicial custody, since 06.09.2023.

It has further been asserted by the applicant that investigation, in the present case, is complete and completion of the trial, against him, will take sufficient time. As such, it has been prayed that no useful purpose would be served by keeping him in the judicial custody, for indefinite period.

The applicant has given certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail.

According to the applicant, he had also tried his luck, before the Court of learned Additional Sessions Judge, Fast Track Special Court (POCSO) Shimla (hereinafter referred to as the ‘learned trial Court’), by moving bail application, bearing CIS No.19 of 2024, for releasing him on bail. However, his bail application was dismissed, vide order dated 20.01.2024.

6.1 Thereafter, applicant had again filed bail application, before the learned trial Court, which was also dismissed, vide order dated 18.03.2024.

It is the further case of the applicant that bail has also been sought, on the ground of parity, as, his co-accused, namely Sachin, has already been released on bail, by this Court, vide order dated 04.03.2024, passed in Cr.MP(M) No.301 of 2024.

On the basis of above facts, applicant has prayed for releasing him on bail, during the pendency of the trial, under Section 439 of the CrPC.

When put to notice, police has filed the status report, disclosing therein, that police of Police Station West, Shimla, received an information, with regard to the fact, that the child victim, along with her mother, had gone to DDU Hospital, Shimla, for check-up, and on check-up, she was found pregnant, upon which, the police was informed.

9.1 The child victim, in the presence of her mother, made a statement, disclosing therein, that Sachin was known to the victim, since last 6-7 months. About 5-6 months, prior to the incident, Sachin met the child victim at Ghora Chowki, from where, he took her to his room. He forced her to have physical relations with him. Despite the resistance of the child victim, she was raped there. She has also got recorded in her statement that she was raped on number of occasions. Thereafter, the child victim disclosed this fact to her friend Simran. On the basis of above facts, she prayed that action may be taken.

9.2 It is the further case of the police that when, medico legal examination of the child victim was conducted, then, she had disclosed to the Medical Officer that apart from accused Sachin, one more person had raped her. These facts were recorded by the Medical Officer, in the MLC, on 06.09.2023.

9.3 During investigation, child victim disclosed that applicant-Vinay Kumar, who is residing in her house, has also raped her. She has also disclosed that on 29.08.2023, applicant-Vinay Kumar has raped her, in his vehicle No.HP63-B-1904, by taking her to Shoghi side. Thereafter, statements, of child victim and her mother, were recorded under Section 161 CrPC. Applicant-Vinay Kumar was also arrested on 06.09.2023.

9.4 It is the further case of the police that during investigation, foetus was aborted and the physical evidence was collected for analysis. Thereafter, child victim was produced, before the Court, on 11.09.2023 and statement, under Section 164 CrPC, was recorded.

9.5 In DNA test, applicant-Vinay Kumar was found to be the biological father of the foetus.

9.6 After conclusion of the investigation, police has submitted the report, under Section 173(2) CrPC, and cognizance has been taken by the learned trial Court. Three prosecution witnesses have been examined, in this case, so far and now, the case has been fixed for remaining prosecution evidence, on 17/18.06.2024.

9.7 It has also been mentioned, in the status report, that co-accused Sachin has already been released on bail, on 05.03.2024.

Lastly, the police have expressed the apprehensions that the applicant is the resident of adjoining State and in case, he is released on bail, he may not be available for trial, and may also coerce the prosecution witnesses or allure them to depose, in his favour.

On the basis of above facts, a prayer has been made to dismiss the bail application.

Learned counsel, appearing for the applicant, has also placed on record, copies of statement of child victim and her mother.

12.1 Copies of these statements to show that neither the child victim, nor her mother had supported the case of the prosecution. At this stage, no benefit could be derived, by the applicant, from this fact, because it is the sole prerogative of the learned trial Court to consider the fact that the child victim, as well as, her mother have turned hostile and that prerogative cannot be taken away, by this Court, while accepting the said contention, as, the evidence of a hostile witness does not efface from the record.

As such, no benefit could be derived, by the applicant, from the fact that the child victim, as well as, her mother have not supported the case of the prosecution. However, considering the fact, that the child victim has not named the applicant as an accused, when, statement, under Section 154 CrPC, was recorded, his prayer for bail can be considered.

Although, FIR is not the encyclopedia of the events, however, considering the fact, that the investigation, in the present case, is complete and the child victim, as well as, her mother have already been examined, by the learned trial Court, this Court is of the view that no useful purpose would be served by keeping the applicant in judicial custody, that too, for the indefinite period, as chances of conclusion of trial, against the applicant, are not so bright. The learned trial Court has, now, fixed the case, on 17/18.06.2024, for prosecution evidence.

Even otherwise, on the ground of parity, applicant is held entitled for the relief, for which, the present application has been moved, as, his co-accused Sachin has already been released on bail, by this Court. Similar role has been attributed to the applicant, by child victim.

Considering all these facts, this Court is of the view that pre-trial punishment is prohibited under the law and no useful purpose would be served by keeping the applicant in judicial custody, that too, for the indefinite period.

So far as the apprehensions, which have been expressed, by the police, in the status report, are concerned, for those apprehensions, reasonable conditions can be imposed, upon the applicant, in case, he is ordered to be released, on bail.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

Applicant is ordered to be released, on bail, in case, FIR No.189 of 2023, dated 05.09.2023, registered, under Sections 376 and 506 of the IPC and Sections 4 and 6 of the POCSO Act, with Police Station, Shimla West, on his furnishing personal bail bond, in the sum of ₹50,000/-, with one surety, in the like amount, to the satisfaction of learned trial Court. This order, however, shall be subject to the following conditions:

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as, these observations, are confined, only, to the disposal of the present bail application.

It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated, by the applicant.

Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Kaithu, through email, with a direction to enter the date of grant of bail in the e-prison software.

In case, applicant is not released, within a period of seven days, from the date of grant of bail, the Superintendent of District Jail, Kaithu, is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of the District Jail, Kaithu is further directed that if applicant fails to furnish the bail bonds, as per the order, passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.