Vishal Kishore And Others vs State Of H.P

Jyotsna Rewal Dua, J

The petitioners are real brothers and co-accused in FIR No.160/2020 lodged under Sections No.363, 376, 377, 34 of the Indian Penal Code and

Section 4 of The Protection of Children from Sexual Offences (POCSO) Act, registered at Police Station Gohar, District Mandi, H.P. They are

confined to prison w.e.f. 5.10.2020 and thus through this instant petition are praying for grant of regular bail under Section 439 of Code of Criminal

Procedure.

Heard learned counsel for the parties and gone through the status report as well as record made available by the respondent-State.

The gist of the prosecution case against the bail petitioners as it comes out from the status report is that:-

3(i). On 29.9.2020, a complaint was filed by one Dharam Singh-father of the prosecutrix stating therein that on 26.9.2020, his minor daughter

(prosecutrix) and his younger son aged about 15 years were the only family members at home during day time. The complainant alongwith his wife

and elder son returned home during evening. They noticed that the prosecutrix was missing from home. Her whereabouts were tried to be located but

in vain. At 7 O’ Clock, they received a call from a specific mobile number, which was used by their daughter (prosecutrix) to inform them that she

had married one Vishal Kishore (petitioner in Cr.MP(M) No.1949/2020) and was at Bilaspur. The father/complainant talked to his daughter for

sometime on this number but thereafter the number was switched off. The family members repeatedly called the aforesaid number, but it remained

switched off. On 27.9.2020, the complainant was able to connect to that very number and talked to the prosecutrix and the petitioners. The request of

the family members to return home was declined by the prosecutrix. The prosecutrix and the petitioners also refused to give their exact location. The

number was again turned off and it remained switched off thereafter. Three days later, the father of the prosecutrix filed his complaint. On the basis

of which, the aforesaid FIR was registered on 29.9.2020, initially under Section 363 of the Indian Penal Code.

3(ii) The prosecutrix was eventually traced in Diyara sector at Bilaspur on 5.10.2020. During investigation, she disclosed her date of birth as 1.2.2003

and the fact that she had passed +2 examination. She further stated that she came in contact with the petitioner Vishal Kishore on facebook and

remained in his constant touch through video-calls and phone-calls. They decided to get married. For this purpose, the prosecutrix was called to Chail

Chowk on 26.9.2020. She accordingly went there on her own and of her own accord. From Chail Chowk, she was taken to Bilaspur by the brother of

Vishal Kishore i.e. Rahul Kishore (petitioner in Cr.M.P.(M) No.1950/2020). The prosecutrix met Vishal Kishore at Bilaspur. During the period in

question, they stayed at Diyara sector at Bilaspur and at various other places belonging to relatives of the petitioners on different dates including

Gurdwara Anandpur Sahib. On 4.10.2020, the prosecutrix alongwith the petitioners returned to Diyara sector at Bilaspur from where she was

eventually recovered by the police.

3(iii) As per the status report, accused Vishal Kishore committed rape upon the prosecutrix while they were at Dhulehad Una and accused (Rahul

Kishore) raped her on 4.10.2020 at Kandror Bilaspur. The investigation led to insertions of Sections 376, 34 of the Indian Penal Code and Section 4 of

The Protection of Children from Sexual Offences (POCSO) in the said FIR. The petitioners were arrested on 5.10.2020. Further according to the

status report, on the basis of MLC of the prosecutrix, Section 377 of the Indian Penal Code was also incorporated in the FIR.

Learned counsel for the petitioner submitted that the petitioner Vishal Kishore and prosecutrix were in a love relationship, which was not accepted

by the family members of the prosecutrix. Resultantly, this false complaint has been levelled against the petitioners by the father of the prosecutrix.

The petitioners are not guilty of the offences alleged against them in the FIR. He further submitted that the bail petitioners will abide by all the

conditions, which may be imposed upon them, in case of their release on bail and further they will neither influence prosecution witnesses nor temper

with the prosecution evidence in any manner.

Learned Additional Advocate General opposed the grant of bail on the ground that the prosecutrix was minor on the alleged date of occurrence and

the petitioners have been accused of heinous and serious offences.

As per the status report, the date of birth of prosecutrix is 1.2.2003, which makes her around 17 years and 10 months old on the date of alleged

occurrence. The conduct of the prosecutrix, shows her to be sufficiently mature for her age. I have seen her statement placed on record by the

investigating agency, according to which, she had left her home of her own accord in order to marry the petitioner Vishal Kishore. As per the

complaint lodged by father of the prosecutrix, the petitioner Vishal Kishore and prosecutrix had telephonically informed him on 26.9.2020 itself

regarding their marriage and the factum of their living together at Bilaspur. Despite this, the complaint was lodged by her father, three days later i.e.

on 29.9.2020. As per the status report, the prosecutrix did not even agree to reside with her parents and wanted to live with the petitioner Vishal

Kishore. Since the prosecutrix had expressed her intention not to live with her family members, therefore, the learned Judicial Magistrate concerned,

ordered her to be produced before Child Welfare Committee Mandi (CWC) Mandi. It is subsequent to the order passed by the Child Welfare

Committee, that the prosecutrix is presently residing with her parents.

Looking into the nature of accusations, the mode and manner of commission of alleged offences, the investigation carried out so far and coupled with

the fact that the petitioners are behind the bars w.e.f. 5.10.2020, I am of the considered view that further incarceration of the petitioners is not going

to achieve any significant object in the facts & circumstances of the case. Whether the petitioners are actually guilty of offences alleged against them

or not can be ascertained only by leading cogent evidence during the trial. Investigation in the matter is stated to be almost complete. Petitioners have

no criminal antecedents. They are permanent residents of village Diyara sector Bilaspur Tehsil and District Bilaspur, H.P. therefore, their presence

can be secured in the trial. The bail applications are accordingly allowed. Bail petitioners are ordered to be released in the above mentioned FIR,

subject to their furnishing personal bonds in the sum of Rs.50,000/-with one local surety each in the like amount to the satisfaction of the learned trial

Court having jurisdiction over the concerned Police Station, subject to the following conditions:-

(i) Petitioners are directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. They shall

fully cooperate with the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law;

(ii). Petitioners shall not temper with the evidence or hamper the investigation in any manner whatsoever;

(iii). Petitioners will not leave India without prior permission of the Court;

(iv). Petitioners shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the

facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer;

(v) Petitioners shall neither contact nor influence nor threaten nor intimidate in any manner the prosecutrix, the complainant and their family members.

(vi). In case of launching of prosecution, the petitioners shall attend the trial on every hearing, unless exempted in accordance with law;

(vii). Petitioners shall inform the Station House Officer of the concerned police station about their places of residence during bail and trial. Any change

in the same shall also be communicated within two weeks thereafter. Petitioners shall furnish details of their Aadhar Cards, Telephone Numbers, E-

mails, PAN Cards, Bank Account Numbers, if any; &

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. Learned Trial Court shall decide the main matter without being influenced by the above observations.

With the aforesaid observations, the petitions stand disposed of, so also the pending miscellaneous applications, if any.

Copy dasti.