The Single Bench of High Court of Himachal Pradesh, Shimla consisting of Justice Sandeep Sharma while granting bail to the petitioner u/s 439 CrPC who was accused u/s 363, 366, 504, 506 and 376 of the IPC and Sections 04 and 16 of the POCSO Act, opined that victim-prosecutrix, who at that relevant time, was 17 ½ years old could understand the consequences of her being in the company of the bail petitioner, who wanted to solemnize marriage with her.
Facts
Complainant lodged a complaint alleging therein that his daughter i.e., victim-prosecutrix (name withheld), who was 17 years old had gone to college. But when she did not return to home till 5:00pm, he contacted her friend and came to know that the petitioner made his daughter to elope with him. When he tried to contact the petitioner on his phone number, petitioner informed that he solemnized marriage with her. Complainant alleged that since petitioner has made the victim-prosecutrix, who is minor, to elope with him, appropriate action in accordance with law should be taken against him.
Procedural History
Before action, if any, on the aforesaid complaint could be taken by the police, complainant informed that victim-prosecutrix has come back and he shall bring her before police on the next day. Victim-prosecutrix joined the investigation but refused to undergo medical examination. She categorically stated to the Medical Officer that she does not want to undergo medical test and she of her own volition had gone with the present petitioner to Manali. However subsequently, victim-prosecutrix again presented herself for medical examination and claimed that she had gone with the petitioner to Manali and there, she was forcibly sexually assaulted by him. Police also got statement of victim-prosecutrix recorded u/s 161 CrPC, wherein she stated that she of her own volition had gone to Manali and there she was compelled to solemnize marriage by him. In the aforesaid background, FIR as detailed herein above, came to be lodged against the present bail petitioner and since then, he is behind the bars.
Contentions Made
Appellant: Since investigation is complete and challan is likely to be filed, prayer was made for grant of regular bail.
Respondent: Though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on behalf of the petitioner for grant of bail deserves to be rejected.
Observations of the Court
The Bench observed that:
“Interestingly, at the first instance, victim-prosecutrix refused to undergo medical examination and claimed before the doctor that she of her own volition had gone to Manali with bail petitioner, but subsequently, during her medical examination disclosed to the doctor that she was beaten by her parents. She claimed that bail petitioner solemnized marriage with her and sexually assaulted her against her wishes. Though medical officer has opined that possibility of sexual intercourse cannot be ruled out, but MLC, if perused in its entirety, nowhere suggests any, external or internal injuries.”
The Bench further observed that:
“Though learned Deputy Advocate General has argued that victim-prosecutrix was minor and bail petitioner taking undue advantage of her innocence and minority sexually exploited her against her wishes, but having taken note of the conduct of the victim-prosecutrix, which is apparent from her statements, this Court does not agree with the aforesaid submission of learned Deputy Advocate General, rather this Court is convinced and satisfied that victim-prosecutrix, who at that relevant time, was 17 ½ years old was capable of understanding the consequences of her being in the company of the bail petitioner, who wanted to solemnize marriage with her.”
Judgment
The petitioner was ordered to be released on bail, subject to his furnishing personal bond in the sum of Rs. 50,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
- 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;
- He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
- He shall not make any inducement, threat or promises to any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
- He shall not leave the territory of India without the prior permission of the Court.
If the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
Case Name: Sunil Kumar vs The State of Himachal Pradesh
Citation: Criminal Misc. Petition Main No. 2463 of 2021
Bench: Justice Sandeep Sharma
Decided on: 31st December 2021
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