Reserved On: 03.11.2023 vs State Of H.P
2023 Latest Caselaw 17497 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                             Cr.M.P(M) No. 2721 of 2023
                                              Reserved on: 03.11.2023
                                          Decided on: 4th November, 2023
        Riyaj Khan                                                       .......Applicant

                                                 Versus

        State of H.P.                                                         ...Respondent
        Coram

The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant: Mr. Vinod Chauhan and Ms. Aanchal Singh, Advocates.

For the respondent: Mr. Tejasvi Sharma, Addl. A.G with Ms. Leena Guleria, Dy.

A.G.

Virender Singh, Judge.

By way of present application, under Section 439

of the Code of Criminal Procedure (hereinafter referred to as

'Cr.PC'), applicant-Riyaj Khan has sought his release, on bail,

during the pendency of trial, in case FIR No. 5 of 2023, dated

7th January, 2023, registered with Police Station Paonta

Sahib, District Sirmaur, H.P., under Sections 363, 366 and

376 of the Indian Penal Code (hereinafter referred to as 'IPC')

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

and Sections 4 and 17 of the Protection of Children from the

Sexual Offences Act (hereinafter referred to as 'POCSO Act').

2. According to the applicant, he is an innocent

person and has falsely been implicated, in the present case.

According to him, the prosecution story is unreliable and no

evidence has been found against him. The applicant has put

forward his clean antecedents, seeking relief in the present

case.

3. The investigation is also stated to be complete and

report under Section 173 (2) Cr.P.C has been filed in the

Court of learned Additional Sessions Judge, Fast Track

Special Court (Rape/POCSO), Sirmaur at Nahan, H.P.

3. Apart from this, number of undertakings have also

been given on behalf of the applicant, for which, the applicant

is ready to abide by, in case, released on bail, during the

pendency of the trial.

4. The applicant has earlier filed Cr.M.P(M) No. 1960

of 2023 for bail, however, the said application was dismissed

as withdrawn on 10.08.2023.

5. The applicant has earlier tried his luck before the

learned Additional Sessions Judge, Sirmaur at Nahan, by

filing a bail application, however, the said application was

dismissed by the learned Sessions Judge vide order dated

12.10.2023.

6. On the basis of above facts, a prayer has been

made to release the applicant, on bail, during the pendency of

the trial.

7. When put to notice, the police has filed the status

report, disclosing therein, that on 07.01.2023, complainant

along-with child victim and her son, appeared before the

police of Police Station, Paonta Sahib along-with the

complaint, disclosing therein, that she is resident of the

place, as mentioned in the complaint and blessed with two

sons and three daughters. The child victim is working in the

company.

7.1. On 06.01.2023, she had gone to attend her work

at about 8.30 a.m. During the day time, the complainant

came to know about the fact that Riyaj Khan (applicant) had

enticed away the child victim and took her to his residential

quarter. When, the complainant had gone there, the

applicant has not permitted the child victim to leave the said

place. In the evening, when her sons came back from their

work, thereafter, they had brought back the child victim. At

home, the child victim has disclosed that her 'Nikkah' has

been performed with the applicant. She has also disclosed

that she was raped by the applicant. She has given the age of

the applicant as 15 years.

8. On the basis of above facts, the police has

registered the FIR in question and police machinery swung

into motion. The child victim was sent to Civil Hospital,

Paonta Sahib for her medico legal examination. Her statement

was got recorded under Section 164 Cr.P.C., by producing her

before the learned ACJM, Paonta Sahib.

9. The accused was arrested on 07.01.2023. He was

also got medico legally examined at Civil Hospital, Paonta

Sahib. The physical evidence, so collected, by the doctors at

the time of medico legal examination of the child victim, as

well as, the accused was sent to SFSL, Junga. The mother of

the child victim has produced the documents pertaining to

her 'Nikkah', which were taken into possession.

10. On the basis of above facts, the involvement of

Mohd. Islam Ishtiyakh, Nafis and Iqbal Hussain was found, in

this case.

11. During the investigation, the documents

pertaining to the date of birth of the child victim were also

obtained. As per those documents, her date of birth is

01.01.2008. After receiving the report from SFSL, Junga, the

police has submitted the report under Section 173(2) Cr.P.C

and the case is now stated to be fixed on 23.12.2023 for PWs.

12. Lastly, it has been mentioned in the status report

that co-accused of the applicant, namely, Mohd. Islam

Ishtiyakh, Nafis and Iqbal Hussain have already been

released on bail by the learned trial Court.

13. On the basis of above facts, a prayer has been

made to dismiss the application.

14. Along-with the application, the applicant has

placed on record the photocopies of the statements of child

victim, as well as, her mother (complainant) and brother.

From the testimonies, so recorded by the learned trial Court,

an argument has been advanced by the learned counsel for

the applicant that all the three star witnesses have not

supported the case of the prosecution.

15. The effect of not supporting the case of the

prosecution by the child victim, by her mother (complainant)

and her brother is to be considered by the learned trial Court,

as, the testimonies of the hostile witnesses does not efface

from the record.

16. Considering the allegations against the applicant

that he had performed 'Nikkah' with the child victim and

considering the fact that the star witnesses have not

supported the case of the prosecution, this Court is of the

view that no useful purpose would be served by keeping the

applicant in the judicial custody for indefinite period.

17. The age of the applicant has been mentioned in

the application as 23 years. In the status report, the age of

the applicant has also been mentioned as 23 years.

Considering the young age of the applicant, keeping the

applicant in the judicial custody, that too, in the company of

hardened criminals would certainly affect his future.

18. No other criminal history of the applicant has

been pleaded or argued.

19. Considering all these facts, this Court is of the

view that the applicant is able to make out a case for bail in

his favour.

20. Considering all these facts, this Court is of the

view that the bail application is liable to be allowed and is

accordingly allowed.

21. The applicant is ordered to be released on bail in

case FIR No. 5 of 2023, dated 7th January, 2023, registered

with Police Station Paonta Sahib, District Sirmaur, H.P.,

under Sections 363, 366 and 376 of IPC and Section 4 & 17

of POCSO Act, on his furnishing personal bail bond, in the

sum of ₹50,000/-, with one surety of 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.

22. 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.

23. It is made clear that the 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.

24. The Registry is directed to forward a soft copy of

the bail order to the Superintendent of Jail, Model Central

Jail, Nahan through e-mail, with a direction to enter the date

of grant of bail in the e-prison software.

25. In case, the applicant is not released within a

period of seven days from the date of grant of bail, the

Superintendent of Jail, Model Central Jail, Nahan is directed

to inform this fact to the Secretary, DLSA, Sirmaur at Nahan.

The Superintendent of Jail, Model Central Jail, Nahan is

further directed that if the 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.

November 04, 2023                               ( Virender Singh )
      (naveen)                                        Judge




Digitally signed by RAJNI
Date: 2023.11.04 15:50:26 IST