Himachal Pradesh High Court

Reserved On: 18.08.2025 vs State Of Himachal Pradesh on 22 August, 2025

2025:HHC:28475

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1319 of 2025

Reserved on: 18.08.2025

Date of Decision: 22.08.2025.

           Kartik                                                                        ...Petitioner

                                                  Versus

           State of Himachal Pradesh


           Coram
                                    r                 to                               ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No

For the Petitioner : Mr. Mohit Jaitak, Advocate, through VC and Mr. Mohit Nagta, Advocate, present in the Court.

For the Respondent/State: Mr. Lokender Kutlehria, Additional Advocate General.

For the Victim: Ms. Prajwal Busta, Advocate, Legal Aid Counsel for the victim.

Rakesh Kainthla, Judge

The petitioner has filed the present petition seeking

grant of bail in FIR No. 17 of 2024, dated 27.05.2024, registered

at Women Police Station Una, District Una, for the commission

of offences punishable under Section 376D of the Indian Penal

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

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Code (hereinafter referred to as IPC) and Section 4 of Protection

of Children from Sexual Offences Act (hereinafter referred to as

POCSO).

2. It has been asserted that the police filed a charge

sheet against the petitioner and the co-accused. The statements

of the victim and her parents were recorded on 21.01.2025. The

petitioner is a 23-years old young man with a bright future. He

was falsely implicated in the present case. As per the

prosecution, the victim was taken to Peer Nigah by co-accused

Gurpreet and the petitioner. The victim claimed that she was

administered alcohol and raped by both the accused. Samples

were preserved and sent to RFSL, Dharamshala. The DNA profile

did not match the petitioner's DNA. This raises serious doubt

regarding the prosecution's case. The victim's version is

inconsistent. The charge sheet has been filed before the Court.

The prosecution has examined nine witnesses out of the

twenty-four witnesses cited by it. The petitioner would abide by

the terms and conditions which the Court may impose, hence

the petition.

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3. The petition is opposed by filing a status report

asserting that the victim was known to Sunny. He called the

victim and asked her to accompany him to Peer Nigah. He and

his friend (the present petitioner) took the victim to Peer Nigah.

Sunny took the victim to a room where alcohol was

administered to her. Sunny raped her. The victim was taken to a

temple at Palakwah, where she was raped by Sunny and the

petitioner. She regained consciousness the next morning at

about 06.00 am. She was found in the dickey of the vehicle

owned by her uncle. The police registered the FIR and conducted

the investigation. The victim and the accused were medically

examined, and samples were preserved. These were sent to the

RFSL Dharamshala, and as per the report of the analysis, human

semen was detected in the pants and handkerchief of the victim

and the underwear of the accused Kartik. The DNA profile

obtained from the pants and handkerchief of the victim, vaginal

swab and condom matched the DNA profile of the co-accused

Gurpreet and the victim. The charge-sheet was filed before the

Court on 23.07.2024. Twelve witnesses have been examined, and

the statements of twelve witnesses are yet to be recorded. The

matter is listed before the learned Special Judge, Una, on

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05.09.2025 and 06.09.2025 respectively. Hence the status

report.

4. I have heard Mr. Mohit Jaitak, learned counsel,

through VC and Mr. Mohit Nagta, learned counsel present in the

Court, for the petitioner, Mr. Lokedner Kutlehria, learned

Additional Advocate General, for the respondent/State and

Ms.Prajwal Busta, learned Legal Aid Counsel for the victim.

5. Mr. Mohit Jaitak, learned counsel for the petitioner,

submitted that the petitioner is innocent and that he was falsely

implicated. The victim made a statement during the trial that

she was not aware of what transpired after she became

unconscious. This rules out the petitioner's involvement. The

DNA report does not implicate the petitioner, as the DNA profile

obtained from the clothes and vaginal swab of the victim did not

match the petitioner's DNA. Therefore, he prayed that the

present petition be allowed and the petitioner be released on

bail.

6. Mr. Lokender Kutlehria, learned Additional Advocate

General for the respondent/State, submitted that allegations

against the petitioner are heinous and the petitioner will

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interfere with the progress of the trial in case of his release on

bail. Therefore, he prayed that the present petition be dismissed.

7. Ms. Prajwal Busta, learned Legal Aid Counsel for the

victim, submitted that the petitioner and the co-accused had

raped the victim after administering alcohol to her. She was

known to the co-accused, and he took advantage of his

acquaintance. The prosecution's evidence is continuing, and

releasing the petitioner on bail will interfere with the progress

of the trial. Therefore, he prayed that the present petition be

dismissed.

8. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

9. The parameters for granting bail were considered by

the Hon'ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC

768: 2024 SCC OnLine SC 974, wherein it was observed at page

783: -

"Relevant parameters for granting bail

26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused,

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the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the

.

possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of

U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of

U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru

Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16

SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar,

(2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]

10. This position was reiterated in Ramratan v. State of

M.P., 2024 SCC OnLine SC 3068, wherein it was observed as

under:-

"12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the

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accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

.

"14. The language of Section 437(3) CrPC, which uses

the expression "any condition ... otherwise in the interest of justice" has been construed in several decisions of this Court. Though the competent court is

empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the

administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have

dwelt on the nature of the conditions which can

legitimately be imposed both in the context of bail and anticipatory bail." (Emphasis supplied)

13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court

to impose "any condition" on the grant of bail and observed in the following terms:--

"15. The words "any condition" used in the provision

should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to

impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the

circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed." (Emphasis supplied)

14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the bail application and observed:

"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the

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realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an

.

application for bail are the nature of the accusation and the

severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or

apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the

accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not

expected to act as a recovery agent to realise the dues of

the complainant, and that too, without any trial."

(Emphasis supplied)

11. This position was reiterated in Shabeen Ahmed versus

State of U.P., 2025 SCC Online SC 479.

12. The present petition has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

13. The status report shows that the petitioner and the

co-accused took the victim to Peer Nigah. The victim was taken

to a temple where the petitioner and the co-accused raped her.

These allegations, prima facie, show the commission of an

offence of gang-rape.

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14. The status report also shows that the victim was aged

16 years on the date of the incident. Thus, she was a minor and

prima facie an offence punishable under Section 4 of the POCSO

Act is established by the allegations made in the status report.

15. The status report also shows that the samples were

sent to RFSL Dharamshala, and as per the report of analysis, the

DNA of the co-accused was found in the clothes and vaginal

swab of the victim. This corroborates her version regarding the

commission of the rape.

16. It was submitted that the petitioner's DNA profile

was not found in the clothes and the vaginal swab of the victim,

which prima facie shows that the petitioner was not involved in

the commission of the offences. This submission is not

acceptable. As per Section 375(a), penetration to any extent is

sufficient to constitute rape. Therefore, the absence of the

petitioner's DNA profile will not mean that there was no rape.

17. A heavy reliance was placed on the fact that the

victim stated in her cross-examination that she was not in her

senses while coming from Peer Nigah, to submit that her

testimony regarding the commission of rape by the petitioner at

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Palakwah is incorrect. This submission is not acceptable. She

categorically stated in her examination-in-chief that both the

accused had forcible physical relations with her at Peer Nigah.

She named the petitioner as the person who had a physical

relationship with her. It is trite to say that the statement of the

witness has to be read in whole, and it is impermissible to pick

up a stray sentence from the statement of a witness and read it

in favour of the prosecution or the accused. Hence, not much

advantage can be derived from the cross-examination of the

witness.

18. In any case, it was laid down by the Hon'ble Supreme

Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that

ordinarily, in serious offences, the Trial Court or the High Court

should not entertain the bail application of the accused after the

commencement of the trial and grant bail because of some

discrepancy in the testimony. It was observed: -

"14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath to entertain the bail application of the Accused.

15. Over a period of time, we have noticed two things, i.e.,

(i) either bail is granted after the charge is framed and just before the victim is to be examined by the

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prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility

.

of the victim.

16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial

commences, it should be allowed to reach its conclusion, which may either result in the conviction of the Accused or the acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and

orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only if the trial gets unduly

delayed and that, too, for no fault on the part of the

Accused, the Court may be justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed."

19. Similarly, it was held by this Court in Suraj Singh v.

State of H.P., 2022 SCC OnLine HP 268 that the Court exercising

bail jurisdiction cannot appreciate the contradictions in the

evidence. It was observed:

10. Petitioner has placed reliance on the statements of witnesses already recorded by the learned Special Judge, in support of his argument to the effect that, from perusal of these statements, reasonable grounds can be entertained for concluding prima facie innocence of the petitioner. The arguments raised on behalf of the petitioner deserve to be rejected for the reason that this Court, while dealing with the bail application, will not appreciate the evidence being recorded during the trial.

Undisputedly, only some of the witnesses out of the entire

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list of witnesses relied upon by the prosecution have been examined. In these circumstances, it is not prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence.

20. Therefore, no advantage can be derived from the

submission made by the victim in her cross-examination.

21. The offence punishable under Section 376-D is

punishable with life imprisonment. The allegations in the status

r to report show that a minor girl was raped after being

administered alcohol. The nature of the offence is heinous, and

the severity of the punishment would disentitle the petitioner

from being released on bail.

22. In view of the above, the present petition fails and

the same is dismissed.

23. The observation made herein before shall remain

confined to the disposal of the present petition and will have no