Himachal Pradesh High Court
Rajneesh Kumar vs State Of Himachal Pradesh on 4 October, 2023
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) Nos.2425, 2445 & 2468 of 2023
Decided on : 04.10.2023
.
1. Cr.MP(M) No.2425 of 2023
Rajneesh Kumar ...Applicant
Versus
State of Himachal Pradesh ...Respondent
2. Cr.MP(M) No.2445 of 2023.
Vishal Kumar
r to
Versus
...Applicant
State of Himachal Pradesh ...Respondent
3. Cr.MP(M) No.2468 of 2023.
Rishav Kumar ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the applicant(s) : Mr. Praveen Chauhan, Mr.
Hemant Kumar Thakur & Mr.
Amandeep Singh, Advocates.
For the respondent(s) : Mr. Tejasvi Sharma, Additional
Advocate General, assisted by
ASI Narinder Kumar, I.O.
Women Police Station Bilaspur.
Whether Reporters of local papers may be allowed to see the judgment? Yes.
Virender Singh, Judge (oral).
The above titled applications are being disposed
.
of, by a common order, as the applicants have filed these
applications under Section 438 of the Code of Criminal
Procedure (hereinafter referred to as 'CrPC'), in case FIR
No.29 of 2023, dated 20th September, 2023, registered with
Women Police Station, Bilaspur, District Bilaspur, H.P.,
under Sections 376(2)(n) and 506 of the Indian Penal Code
(hereinafter referred to as the 'IPC') and Section 6 of the
Protection of Children from Sexual Offences, Act
(hereinafter referred to as the 'POCSO Act').
2. By way of the present applications, the
applicants have sought the indulgence of this Court to
direct the Police/Investigating Officer to release them, on
bail, in the event of their arrest, in the abovementioned
FIR.
3. According to the applicants, they are innocent
and have falsely been implicated, in the present case. They
have nothing to do with the offences, for which, they have
been named, as accused, in the FIR, in question.
4. According to the applicants, they are
apprehending their arrest, in the above noted case.
.
5. In the application, certain undertakings have
been given, on behalf of the applicants, for which, they are
ready to abide by, in case, any direction is issued to the
Police/Investigating Officer, under Section 438 Cr.PC.
6. Application of applicant Rajneesh Kumar, was
taken up on 22.9.2023, 25.09.2023 and on 26.9.2023,
interim protection was given to him, and I.O. was directed
to release him, on bail, in the event of his arrest, subject to
his furnishing personal bond, in the sum of Rs.40,000/,
with one surety in the like amount, to the satisfaction of
the Investigating Officer.
7. Application of applicant Vishal Kumar, was
taken up on 25.9.2023 and on 26.9.2023, interim
protection was given to him and I.O. was directed to
release him, on bail, in the event of his arrest, subject to
his furnishing personal bond in the sum of Rs.40,000/,
with one surety in the like amount, to the satisfaction of
the Investigating Officer.
8. Application of applicant Rishav Kumar, was
taken up on 27.9.2023 and interim protection was given to
.
him and I.O. was directed to release him, on bail, in the
event of his arrest, subject to his furnishing personal bond
in the sum of Rs.50,000/, with one surety in the like
amount, to the satisfaction of the Investigating Officer.
9. When put to notice, the police filed the status
report, disclosing therein that on 19.9.2023, ASI Rattan Lal
has informed the Police of Women Police Station, Bilaspur
that at Ghumarwin Hospital, one minor girl, stated to be
carrying foetus of five months, had come. He has
requested the SHO, Women Police Station, to send the
Police there. Upon this, the I.O. reached the Hospital,
where child victim, along with her mother, was found
there.
9.1. In the presence of the mother, the child victim
has moved a complaint disclosing therein that she is
resident of the address, as mentioned in the complaint.
They are three brothers and sisters. She has passed 10+2
examination. Her father has expired about three years
ago. After the death of her father, applicant Rajneesh
Kumar has started talking to her on phone. He used to
call the child victim on her mother's mobile phone.
.
9.2. ApplicantRajneesh is stated to be brother of
the child victim, in relation and serving in Army. In the
month of April, 2023, he came back on leave. It is her
further case that the applicant Rajneesh had called her to
his house, on phone, at the pretext of some urgent work,
upon which, the child victim had gone there. At that time,
her mother was sleeping.
9.3. When, the child victim reached, at the house of
applicantRajneesh, he was outside the room to receive
her. Thereafter, they both had entered into the room,
where, according to the child victim, she was raped by
applicant Rajneesh. When, the child victim screamed, her
mouth was gagged. Thereafter, she started weeping, upon
which, applicant Rajneesh threatened her with dire
consequences, in case, she discloses this fact to anyone.
9.4. Thereafter, on 34 occasions, applicant
Rajneesh had called her in his room and raped her. After
every incident, the accused used to threaten the
complainant. Due to his fear, she could not disclose this
fact to anyone.
.
9.5. On the day, when the child victim, moved the
complaint, she has disclosed this fact to her mother and
maternal uncle. Due to the sexual harassment, the child
victim got pregnant, as such, she had prayed that action
be taken against applicant Rajneesh.
10. On the basis of the above facts, the FIR, in
question, has been registered and the police machinery
swung into motion.
11. The child victim was medicolegally examined
and the physical evidence, so collected, was preserved. For
aborting the feotus of the child victim, the medical officer
had referred her to Medical College, Hamirpur.
12. Statement of child victim under Section 164
Cr.PC., was recorded, in the presence of her mother. In
her statement under Section 164 Cr.PC, the complainant
has levelled allegations against Rishav and Vishal, by
stating that Rishav had raped her in the month of August
2023, whereas, Vishal had raped her in the month of July
2023.
13. During investigation, on 21.09.2023, the child
victim, in the presence of her uncle had identified the
.
room, where, in the month of January, 2023 and April,
2023, applicant Rajneesh Kumar had raped her, when he
was on leave.
14. On the same day, the child victim has also
identified the room in her house, where, applicant Rishav
has rapped her in August, 2023. The child victim has also
identified the room, in the house of applicant Vishal, in
which, he raped the child victim on 9/10 th July, 2023,
when child victim had gone there, in order to attend a
marriage.
15. During investigation, on 23.09.2023, the
documents relating to the date of birth of the child victim
were obtained from Gram Panchayat Karloti and
Government Primary School, Karloti. As per those
documents, her date of birth was found to be 15 th July,
2006.
16. The CDR of the mobile number of the mother of
the child victim, as well as, mobile number of the
applicants, were obtained. As per the CDR, all the three
applicants had talked with the child victim.
.
17. It has been apprehended, in the status report,
that in case, any relief is given to the applicants, they may
coerce the witnesses and that there is a lot of resentment
in the area, due to the crime committed by the applicants.
As such, a prayer has been made to dismiss the
application. r
18. The applicants have joined the investigation
and were released, on bail, as per the directions of this
Court. Thereafter, the applicants were medicolegally
examined.
19. In pursuance of the directions, issued by this
Court on 26.09.2023, in CrMP(M) Nos.2425 & 2445 of
2023, as well as, on 27.09.2023, in CrMP(M) No.2468 of
2023, the applicants have been given interim protection
from their arrest. Consequently, the applicants have joined
the investigation, as and when directed by the I.O., to do
so.
20. Applicant Rajneesh has taken the plea that, at
the time of the alleged incident, as per the contents of the
FIR, he was not present there, as he was serving in the
Indian Army. This fact is liable to be considered by the
.
learned trial Court.
21. The role allegedly played by the applicants, in
the commission of the alleged offences, for which, they
have been named, as accused, will be proved during the
trial.
22. Moreover, the trial of the case will take
sufficient long time, as such, no useful purpose would be
served by rejecting the applications, which would amount
to convict the applicants, prior to trial. Pretrial
punishment is prohibited under the law. Punishment can
only be imposed, after the full fledged trial.
23. Considering the factual position, as mentioned
in the status report, this Court is of the view that the Police
is not able to make out a case, against the applicants, for
custodial interrogation. As such, the interim orders dated
26th September, 2023, passed in Cr.MP(M) Nos.2425 &
2445 of 2023 and 27th September, 2023, passed in
CrMP(M) No.2468 of 2023, by this Court, are hereby made
absolute. Therefore, it is ordered that the applicants be
released, on bail, in the event of their arrest, in case FIR
No.29 of 2023, dated 20th September, 2023, registered with
.
Women Police Station, Bilaspur, District Bilaspur, H.P.,
under Sections 376(2)(n) and 506 IPC & Section 6 POCSO
Act, on their furnishing personal bail bonds, in the sum of
₹50,000/, each with one surety each of the like amount,
to the satisfaction of the Investigating Officer.
24. This order, however, shall be subject to the
following conditions:
a) That the applicants will join the investigation of
the case, as and when, called for, by the
Investigating Officer, in accordance with law;
b) The applicants will not leave India, without prior
permission of the Court;
c) That the applicants will not, directly or indirectly,
make any inducement, threat or promise to any
person, acquainted with the facts of the case, so
as to dissuade him/her from disclosing such facts
to the Investigating Officer or the Court; and
d) That the applicants shall 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.
25. 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 applications.
26. The applicants are directed to move regular bail
applications, when charge sheet will be filed, in the
.
Competent Court of Law.
27. It is made clear that the respondentState is at
liberty to move an appropriate application, in case, any of
the bail conditions, is found violated by the applicants.
October 04, 2023(ps)
to ( Virender Singh )
Judge
