Pawan Kumar vs State Of H.P
2021 Latest Caselaw 875 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 86 of 2021

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                                  Reserved on:            Jan 20, 2021.





                                  Date of Decision:       Feb 4, 2021.

    Pawan Kumar                                                            ...Petitioner.





                                  Versus

    State of H.P.                                                         ...Respondent.





    Coram:
    The Hon'ble Mr. Justice Anoop Chitkara, Judge.

    Whether approved for reporting?1 NO

    For the petitioner:    Mr. Anirudh Sharma, Advocate.

For the respondent: Mr.. Ajay Vaidya, Senior Addl. Advocate General with Mr. Bhupinder Thakur & Mr. Gaurav Sharma, Deputy Advocate Generals and Mr. Rajat Chauhan, Law Officer.

                             THROUGH VIDEO CONFERENCE




        FIR No. Dated          Police Station                       Sections





        196/2019 17.8.2019     Sadar, Distt. Bilaspur               363, 376(3), 376(2)
                                                                    (f), IPC, S.4 & 6,
                                                                    POCSO Act





    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest for alluring and raping a

minor girl, has come up before this Court seeking regular bail on the grounds that he

is in judicial custody for around seventeen months.

Whether reporters of Local Papers may be allowed to see the judgment?

2. Earlier, the petitioner had filed a petition under Section 439 CrPC before the

concerned Sessions Court. However, vide order dated 8.10.2020, Ld. Special Judge,

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Bilaspur, HP, dismissed the petition because of the nature and gravity of the offence.

3. In Para 6 of the bail application, the petitioner declares having no criminal

history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 17.8.2019, the

complainant, who is father of the victim, informed the police station about his minor

daughter being abducted and raped. The complainant told that on 14.8.2019 his

daughter had gone to the house of his another married daughter. When in the

evening, he asked his married daughter telephonically about the victim, she told him

that she has returned back home by bus during day time at 2.00 p.m. However, since

the victim did not reach home, the complainant started her frantic search. On

16.8.2019 at about 8.00 p.m., the father-in-law and mother-in-law of his married

daughter brought the victim to her home. On inquiry from mother of the victim, the

victim told her that on 14.8.2019, when she was returning home through bus, then

the brother-in-law (Jeth) of her sister called her on mobile and asked her to get off

the bus at ITI chowk, Bilaspur. On listening to such instructions, she alighted from

the bus at ITI Chowk, at which place Pawan met her and asked her to sit on his

scooty and took her to his home at Samletu. The said Pawan made her stay in his

home for two days, where on two occasions, he forcibly established coitus with her.

On 16.8.2019 he brought her to his home, from where his parents had dropped the

victim back to her home. Based on these allegations, the Police registered the FIR

mentioned above.

5. The police produced the victim before Judicial Magistrate 1 st Class, where her

statement under Section 164, Cr.PC was recorded. On 18.8.2019 the police arrested

the accused. The police also took the victim to Regional Hospital, Bilaspur, where

her medico-legal examination was conducted. The examining doctor obtained

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genetic material from her body and also from her privates. After that, the police took

the accused to the hospital, where his genetic material was also obtained. After that,

the investigator sent the scientific evidence for testing to RFSL. After the receipt of

the report, the doctor opined that there was no evidence of any semen in the samples

and there was nothing to suggest that sexual intercourse had not been conducted.

The doctor further clarified that the sexual intercourse may or may not be happened.

The police obtained call details of the accused and the victim and there was exchange

of frequent calls between them and it appears that they were talking to each other for

lot of time.

6. Ld. Counsel for the petitioner contends that incarceration before the proof of

guilt would cause grave injustice to the petitioner and family. Learned counsel for

the petitioner also states that medical evidence does not connect the accused with the

victim and the opinion of the doctor is also conclusive.

7. On the contrary, Ld. Additional Advocate General contends that the offence is

heinous, accused is a risk to law-abiding people, and bail is likely to send a wrong

message to the society.

REASONING:

8. The status report is not specific about the date of birth of the victim. However,

the report under Section 173(2) stands filed despite that the learned counsel for the

petitioner did not place on record any documents relating to date of birth of the

victim to get some liverage because of the age. Given the fact that the accused is a

married person and despite that he kidnapped the victim and took her to an isolated

place. Merely because the genetic material did not obtain semen would no way

qualify that the victim was not subjected to penetrative sexual assualt.

.

9. Ld. Counsel for the petitioner referred to certain statements and memos from

the police report, prepared under section 173(2) CrPC, copies of which the accused

had duly received in compliance to S. 207 CrPC. However, the documents which the

Ld. Counsel referred were neither filed with the petition, nor its copies supplied to

the Court and the State. Thus, the Court cannot base any finding on a document in

the Counsel's brief and not on Court's file.

10. Learned counsel for the petitioner has not placed reliance on any of the

document of Section 161, Cr.PC or receovery memos or statment of other witnesses,

which may make this Court believe that whether the accsued penetrated in her

privates and if yes, he ejaculated in the vaginal canal or used any latex sheath. The

burden was on the learned counsel for the petitioner to make out a case for bail.

11. Learned counsel for the petitioner has also made several other arguments. Still,

given that this Court is not inclined to grant bail, on the reasons mentioned above,

discussion of the same will be an exercise in futility. Any detailed analysis of the

evidence may prejudice the case of the prosecution or the accused.

12. Given above, in the facts and circumstances peculiar to this case, at this stage,

the petitioner fails to make out a case for bail. The petition is dismissed with liberty

to file a new bail application.

13. This order does not, in any manner, limit or restrict the rights of the Police or

the investigating agency from further investigation per law.

14. Any observation made hereinabove is neither an expression of opinion on the

merits of the case, nor shall the trial Court advert to these comments.

15. There would be no need for a certified copy of this order for furnishing bonds,

and any Advocate for the Petitioner can download this order from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

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In the given facts, this petition is dismissed.

(Anoop Chitkara) Vacation Judge.

    Feb 4, 2021 (mamta)




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