P.S. Rana, J.—Present petition is filed under Section 439 Code of Criminal Procedure for grant of bail relating to FIR No. 39 of 2015 dated 12.9.2015 registered at Police Station Rekong-Peo District Kinnaur H.P. under Sections 366, 370, 376 and 506 IPC and Section 8 of POCSO Act.
2. It is pleaded that there is no iota of evidence on record to connect the petitioner in the alleged offence in any manner. It is further pleaded that bail application was filed before learned Special Judge Kinnaur Sessions Division and same was dismissed on 26.9.2015. It is further pleaded that thereafter Cr.MP(M) No. 1492 of 2015 was filed before the Hon�ble High Court and the same was also dismissed on 18th November, 2015. It is further pleaded that investigation of the case is complete and nothing is to be recovered from the petitioner. It is further pleaded that challan has been filed by the Investigating Agency. It is further pleaded that petitioner undertakes to abide all conditions imposed by the Court and it is further pleaded that petitioner will not tamper with the prosecution witnesses. Prayer for acceptance of bail application is sought.
3. Per contra police report filed. There is recital in police report that petitioner Thakur Singh and co-accused Rajesh Kumar took two un-married girls in a Maruti vehicle having registration No. HP-25A-2363 and thereafter petitioner Thakur Singh had committed rape upon prosecutrix. There is further recital in police report that co-accused Rajesh had committed criminal offence under Section 366, 370 and 354A IPC and under Section 8 of POCSO Act 2012 with another minor prosecutrix. There is further recital in police report that statement of prosecutrix under Section 164 Cr.PC also recorded before learned Chief Judicial Magistrate. There is further recital in police report that as per location shown by prosecutrix site plan was prepared. There is further recital in police report that birth certificate of prosecutrix also obtained from gram panchayat Pangi. There is further recital in police report that accused persons Thakur Singh and Rajesh Kumar are married persons. There is further recital in police report that as per SFL report human semen was detected upon pant, vaginal slide, cervical slide, vaginal swab, cervical swab of prosecutrix. There is further recital in police report that human semen was detected upon glans penis slices of underwear of co-accused Thakur Singh. There is further recital in police report that challan filed in the Court on 14.12.2015. There is further recital in police report that report of SFSL is still awaited qua DNA. There is further recital in police report that allegations against petitioner are very heinous and grave in nature and prayer for rejection of bail application sought.
4. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of non-petitioner and also perused the entire record carefully.
5. Following points arise for determination in this bail application:-
Point No. 1
Whether bail application filed under Section 439 Code of Criminal Procedure is liable to be accepted as mentioned in memorandum of grounds of bail application?
Point No. 2
Final Order.
Findings upon Point No.1 with reasons:
6. Submission of learned Advocate appearing on behalf of petitioner that petitioner is innocent and petitioner did not commit any criminal offence cannot be decided at this stage. Same facts will be decided by learned trial Court after giving due opportunity to both the parties to adduce evidence in support of their case.
7. Another submission of learned Advocate appearing on behalf of petitioner that investigation is complete and petitioner is not required for investigation purpose and petitioner will abide all terms and conditions imposed by the Court and on this ground bail application be allowed is rejected being devoid of merit for the reason hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) Larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others v. State (Delhi Administration). Also see AIR 1962 SC 253 titled The State v. Captain Jagjit Singh. Allegations against the petitioner are very heinous and grave in nature qua commission of criminal offence punishable under Sections 366, 370, 376 and 506 IPC. Petitioner is a married person and prosecutrix at the time of commission of offence was unmarried girl and was school going student. Court is of the opinion that it is not expedient in the ends of justice to release the petitioner on bail at this stage till the statement of prosecutrix is not recorded by learned trial Court in trial proceedings. As of today statement of prosecutrix is not recorded in regular trial. Court is of the opinion that if petitioner is released on bail before recording the statement of prosecutrix during the trial then interest of State and general public will be adversely affected. Court is of the opinion that if petitioner is released on bail before the testimony of the prosecutrix is recorded by the trial Court during the trial proceedings then trial of the case will be adversely affected.
8. Submission of learned Additional Advocate General appearing on behalf of non-petitioner that if petitioner is released on bail at this stage then petitioner will induce and threat the prosecution witnesses and will also commit similar offence and on this ground bail application be rejected is accepted for the reasons hereinafter mentioned. There is apprehension in the mind of the Court that if petitioner is released on bail then petitioner will induce and threat the prosecution witnesses. Allegations against the petitioner are very heinous and grave in nature. It is well settled law that murder destroys the body of victim but rapist degrades the soul of prosecutrix. It is also well settled law that rape is not only a crime against the victim but it is crime against the entire society. It is also well settled law that rape destroys the entire psychology of a woman and pushed her into deep emotional crises. It is also well settled law that rape is crime against basic human rights and is violative of the fundamendal rights granted under Article 21 of the Constitution of India. It is well settled law that rape is most hated crime. See AIR 1996 Supreme Court page 922 titled Sh. Bodhisattwa Gautam v. Miss Subhra Chakraborty. In view of the grave allegations against the petitioner relating to sexual assault upon unmarried school going student and in view of the fact that petitioner was married person, Court is of the opinion that it is not expedient in the ends of justice to release the petitioner till the testimony of prosecutrix is not record by learned trial Court during trial proceedings. Point No.1 is answered in negative.
Point No. 2 (Final Order):
9. In view of findings upon point No.1 bail application filed by petitioner is dismissed. Observations made in this order will not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973. All pending application(s) if any also disposed of.
