Vivek Singh Thakur, J
1. Petitioner has approached this Court, invoking provisions of Section 439 of Cr.P.C., seeking regular bail in case FIR No. 54 of 2020, dated
14.10.2020, registered in Police Station Nankhari, District Shimla, H.P., under Sections 363, 376 and 506 of the Indian Penal Code (in short
‘IPC’) and Sections 6 and 12 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’).
2. Status report stands filed and record was also made available.
3. Prosecution case, in brief, is that on 14.10.2020 complainant, alongwith her husband and minor daughter (victim), had submitted a complaint in
Police Station Nankhari, stating therein that in their family there are two children and their elder daughter (victim) whose date of birth is 18.04.2006
and who is studying in 10th Class in Government High School. Whereas, their 11 years younger child (son) is studying in 8th Class and since 9-10
years, the family is residing in a secondary house situated in their Orchard. On 13.10.2020, her husband and she were not at home during day time and
in the evening, when she reached home, her son informed her that their daughter who had gone to Kholighat to give lunch to her father, did not return
thereafter. Whereupon, complainant informed her husband about it on his mobile. Their daughter was not having phone. Her husband went in search
of their daughter up to Kholighat, but he did not find her. One Sarjeevna told her that her daughter was seen at Kholighat alongwith Sushma.
Thereafter, family members and relatives searched victim at Dophagarh, Kholighat, Narkanda etc., but she was not found anywhere. On 14.10.2020,
when they were searching their daughter at Nagadhar, she received a call of Dropdi informing that victim had reached home. Thereafter, their
daughter was brought to Nagadhar and inquired about her whereabouts during previous night. Whereupon, victim disclosed that petitioner had taken
her from Kholighat to Tikkar on foot and thereafter in a small vehicle from Tikkar to Narkanda and during night he took her to some hotel at
Narkanda and violated her person during night for four times and in the morning he dropped her at Kholighat, wherefrom she went home.
4. On the basis of aforesaid statement, FIR was registered. Statement of victim was recorded under Section 161 Cr.P.C. and she was subjected to
medical examination and as per preliminary opinion of the Medical Officer, possibility of forceful sexual assault could not be ruled out.
5. On finding complicity of petitioner in commission of offence, he was arrested on 14.10.2020 at 9.15 p.m. On interrogation during his custody, place
of occurrence was identified by the petitioner as well as minor victim. On disclosure under Section 27 of the Indian Evidence Act, condoms used by
the petitioner at the time committing offence were taken in possession. Clothes of victim, condoms, vaginal swabs of victim, urethral swabs, and penile
swab of petitioner alongwith his clothes and hair lifted from the spot were sent for chemical analysis to State Forensic Science Laboratory (SFSL)
Junga. Human semen was detected on the underwear of petitioner, condoms, blanket of the Hotel and on DNA analysis of condoms, an autosmal
STR DNA profile pertaining to a male individual was obtained from the inner surface of the condom, which matched completely with DNA profile
obtained from the blood sample on FTA card of the petitioner. An autosmal STR DNA profile pertaining to a female individual was obtained from the
outer surface of condoms, which completely matched with DNA profile obtained from blood sample of victim. On the basis of aforesaid chemical
analysis final opinion was given by the Medical Officer stating that possibility of forceful sexual assault could not be ruled out.
6. After arrest on 14.10.2020, petitioner remained in police custody for three days and thereafter, he was sent in Judicial custody and since then he is
behind the bars.
7. As per record, age of victim at the time of commission of offence, has been confirmed as 14 years 5 months.
8. Petitioner had approached this High Court earlier also by filing Cr.M.P.(M) No.758 of 2021, which was dismissed by a Coordinate Bench on
05.05.2021. Thereafter, petitioner had approached learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr, on 07.10.2021, by filing Bail
Application No.130 of 2021, which was dismissed on 17.11.2021.
9. Statement of victim was also recorded under Section 164 Cr.P.C. on 17.10.2020. In respect to the said statement, the Coordinate Bench, in
Cr.M.P.(M) No.758 of 2021, after taking note of statements of victim, including statement recorded under Section 164 Cr.P.C., and also other
material on record has dismissed the said petition. Facts emerging from statement recorded under Section 164 Cr.P.C. are as under:-
(i) “On 13.10.2020 at 11:15 a.m., she had gone to give food to her father, who was working on a machine (apple grading). After handing over the
food, when she was returning home, her friend Sushma met her. Sushma asked her to accompany to bring a note book from one Sahil. After that they
went to the place of Sahil where they called out him loudly, but Sahil did not respond.
(ii) When they proceeded towards the home, then Abhishek, bail petitioner herein, met them and he asked Sushma to leave the hand of victim.
However, Sushma refused to leave the same saying that she was not afraid of him. Thereafter, Sushma went to her room and victim started walking
towards bazaar.
(iii) When victim was walking towards bazaar, Abhishek also started following her. After purchasing goods, when she was returning home, then,
Abhishek started walking pace to pace with her. She asked him not to walk with her by saying that the people are watching them. When they reached
near to their house, she took rest because she was tired. Abhishek also stayed there. After taking rest for some time, she started walking again and
Abhishek also started walking with her again. She told to Abhishek that she was not going to her home because her brother and uncle would ask her
the reasons for getting late and she started proceeding towards the house of her grandparents.
(iv) On this, Abhishek told her to accompany him. On hearing this, because she was afraid, she started walking with him. They walked from Kholighat
to Tikkar, where a vehicle stopped and Abhishek told her that they can get lift in the said vehicle. On boarding the vehicle, Abhishek called his friend
and told that he was coming to Narkanda with someone and asked his friend to meet him there. On reaching Narkanda, he told his friend that he
would be withdrawing money from the ATM. He also asked his friend Vijay to hand over keys of his room and said that they would be staying there
for some time.
(v) On reaching Narkanda, they went to the room of Vijay. Around 6:30 p.m. Abhishek told his friend Vijay that they had to stay in a Hotel and asked
for phone number of Kapil. Vijay was not having the number but he arranged and informed petitioner with advice to talk directly. After that Kapil
called Abhishek near Temple to see the room and hand over keys of the room. On reaching there, they went to the said room and Kapil told that he
had to go to Rampur and then he left. The victim and the accused took dinner in a hotel at Narkanda and thereafter went back to the room, Abhishek
started forcing himself upon her. Despite repeatedly saying no, Abhishek did numerous sexual assaults with her. The victim said that she could do
nothing. After doing sex, Abhishek told her not to take any tension, nothing would happen.
(vi) In the morning, a friend of Abhishek came to the room and informed Abhishek that his mother was looking for him and was saying that he had
brought some girl but was not telling this. After some time Abhishek also received a phone of his mother and his mother asked him that if he had
brought a girl with him, then tell the truth. Then a phone of her (victim) uncle (chachu) also came to Abhishek and subsequent to that, Abhishek and
his friend Vijay threatened the victim not to reveal this incident to anyone. Thereafter, she returned to her home in the vehicle of friend of Abhishek.â€
10. It has been canvassed on behalf of the petitioner that statements of victim reflect that petitioner did not use any force or compel the victim forcibly
to accompany him, rather victim accompanied him voluntarily and stayed in the Hotel on her own volition and at the time of commission of offence she
did not raise any alarm or hue and cry. She did not complain any person including Manager of the Hotel about forcible violation alleged by her, rather
she went home quietly after staying with the petitioner in the Hotel, which according to the learned counsel for the petitioner substantiates the fact that
petitioner and victim were liking each other and in furtherance thereto victim had accompanied petitioner and stayed with him in the room for indulging
in sexual activity. It has also been contended on behalf of the petitioner that victim has also been examined in the Court in September 2021 and,
therefore, there is no possibility of influencing the victim by the petitioner, and further that her statement in the Court is also fortifying version of the
petitioner.
11. Learned Additional Advocate General has submitted that victim is minor of age of 14 years 5 months, and though there was no consent of the
victim for violating her person, but even if it is construed for any reason that victim was consenting party, even then, keeping in view her age her
consent is immaterial. It has been submitted that in her deposition, under Sections 161 Cr.P.C. and 164 Cr.P.C. as well as deposition on oath in the
Court, victim has categorically stated that she was violated by the petitioner forcibly despite her refusal to indulge in such activity. It has further been
submitted that being a girl of tender age conduct of the victim cannot be taken as a party consenting to the act of sexual intercourse and that in such
tender age, a child is not expected to respond as a matured person to raise alarm or to report the matter to others. There is always possibility of hiding
such wrong incident from the strangers. Further that, however, the victim in present case had disclosed the fact to her mother at the first instance
immediately when she met her mother for the first time on 14.10.2020, which clearly indicates that victim was not consenting party to the forcible
violation of her person by the petitioner.
12. Petitioner is 23 years old young person. Whereas, victim is 14 years 5 months old adolescent. It is a unique stage of human development. It is a
transitional stage of physical and psychological development occurring during puberty to adulthood. There is nothing on record before me to depict that
petitioner and victim were having any love affair or having intensive relationship with each other. Rather, it has been stated by victim that petitioner
used to meet her when she used to go to School and he used to bring Chocolates etc. to her, but she did not take the same at any point of time. Victim
had accompanied petitioner on foot as well as in vehicle and had dinner with him and thereafter, stayed in a Hotel. Even if all this is considered to be a
consented activity on the part of the adolescent victim out of curiosity or otherwise, then also, it cannot be construed that she had consented for
violation of her person as in every recorded statement of victim, she has categorically stated that petitioner had violated her person forcibly despite her
refusal. Consent to accompany, wander or to have dinner and to stay in a room does not, in all eventuality, amount that there is consent of a girl or
woman to have sexual intercourse. Therefore, plea of the petitioner that consent of the victim for accompanying the petitioner was implied consent for
sexual intercourse is not acceptable.
13. Learned counsel for the petitioner has referred various pronouncements of different Courts. These judgments/orders are of no help to the
petitioner. These pronouncements are being discussed hereinafter.
14. In judgment/order dated 17.12.2018, passed by the Coordinate Bench of this Court in Cr.M.P.(M) No.1271 of 2018, titled as Gaurav vs. State of
H.P., victim and her mother had resiled from their previous statements recorded by the Investigating Officer as well as before the Magistrate. But it is
not so in present matter.
15. In Cr.M.P.(M) No.968 of 2019, titled as Simple Kumar vs. State of Himachal Pradesh, decided on 12.06.2019 by Coordinate Bench of this Court,
from the material available on record it was found by the Court that though at the time of alleged incident, prosecutrix was less than 12 years of age,
but report of DNA placed on record had indicated that child in the womb of the prosecutrix was not of the bail petitioner, whereas, claim of the
prosecutrix was that she became pregnant after having been raped by the bail petitioner and the statement of victim was not corroborated by medical
evidence placed on record by the Investigating Agency. Facts in present case are otherwise. Therefore, this judgment is of no help to the petitioner.
16. Judgments in Cr.M.P.(M) No.1789 of 2019, titled as Pankaj Kumar vs. State of Himachal Pradesh; decided on 21.10.2019; and Cr.M.P.(M)
No.2128 of 2019, titled as Tota Ram vs. State of Himachal Pradesh, decided on 25.11.2019, have been passed by a Coordinate Bench of this Court,
wherein petitioners-accused were enlarged on bail in cases registered under POCSO Act for peculiar circumstances of those cases which are not
applicable in present case as the same Bench has considered the facts in present case and rejected bail application of the petitioner vide order dated
05.05.2021, passed in Cr.M.P.(M) No.758 of 2021, by passing a detailed order as referred supra.
17. In Cr.M.P.(M) No.1062 of 2020, titled as Kalu @ Rustam vs. State of Himachal Pradesh, decided on 05.08.2020 by a Coordinate Bench of this
Court, it was observed that prior to the date of alleged incident victim was in constant touch with the bail petitioner and in her statement recorded
under Section 164 Cr.P.C. she had clearly stated that she and bail petitioner used to like each other and wanted to solemnize marriage which is
contrary to the material on record in present case.
18. Judgment in Cr.Appeal No.97 of 2019, titled as Sanjeev Kumar vs. State of H.P., decided on 03.03.2021, passed by a Coordinate Bench of this
Court, is a judgment passed in Criminal Appeal, but not in a bail application. Whereas, in present case parameters necessary to be considered for bail
application are required to be considered. Otherwise also in that case, it has been observed by the Coordinate Bench that none of the prosecution
witnesses including victim had supported case of the prosecution that accused had raped victim/prosecutrix on the date of alleged incident and,
therefore, DNA Report in that case was not considered as a conclusive proof of guilt of the accused. It is not essence of the judgment under
reference that DNA profiling is not even a corroborative evidence.
19. In Cr.M.P.(M) No.404 of 2021, titled as Veer Bhadur @ Vishal vs. State of Himachal Pradesh, decided on 24.03.2021, victim in her own
statement had stated that she went alongwith bail petitioner on 22.02.2019 and remained in his company till 24. 02.2019 and after her alleged recovery
from the room of the bail petitioner, no report was lodged against the bail petitioner and victim had refused to undergo medical examination, rather at
that time she disclosed to the police that bail petitioner did not commit any wrong act with her but after 36 days of the alleged incident, statement of
the victim was recorded under Section 154 Cr.P.C.
20. In Criminal Misc. Petition (Main) No.2463 of 2021, titled as Sunil Kumar vs. State of Himachal Pradesh, decided on 31.12.2021, in her statement
victim/prosecutrix had stated that it was she who pressurized the bail petitioner to go to Manali and compelled him to solemnize marriage.
21. Similarly facts in Cr.M.P.(M) No.1160 of 2021, titled as Prakash Singh vs. State of Himachal Pradesh, decided on 16. 07.2021; and in Cr.M.P.
(M) No.698 of 2019, titled as Sonu Lal @ Rinku vs. State of Himachal Pradesh, decided on 02.05.2019, are not similar to the facts in present case.
22. In Judgment dated 01.02.2022 passed by a Coordinate Bench of this Court in Criminal Misc. Petition (Main) No.37 of 2022, titled as Amar @
Rounie vs. State of Himachal Pradesh, also the facts were not like present case and, therefore, same is not applicable in present case.
23. Judgment passed by the Delhi High Court in Bail Aplication No.1559 of 2020, titled as Dharmander Singh @ Saheb vs. The State (Govt. of NCT,
Delhi), decided on 22.09.2020, is not applicable in present case as in that case it was considered by the Court that age difference between victim and
the accused was about 4-5 years and both were not fully matured persons and the victim appeared to have returned to the accused time and again and
lived with him for periods of time at his house alongwith his mother indicating approval in fact, if not consent in law, on her part for the alleged act and
further that due to circumstances prevailing at the time of considering that bail, for spread of Corona Virus pandemic it was found unlikely by the
Court that trial would be completed any time soon.
24. Order dated 29.01.2021, passed by High Court of Delhi in CRL.A.267/2020, CRL.M.(Bail)7718/2020 & CRL.M.A. 130/2020, titled as Salman vs.
The State Govt. of NCT Delhi, is of no help to the petitioner as in the said case it has been held that there was no infirmity in the impugned judgment
of conviction of the appellant therein and sentencing him for commission of offence punishable under Section 6 read with Section 5(m) of POCSO Act
and Section 325 of IPC.
25. Vide order dated 04.02.2021, passed by High Court of Judicature at Bombay, in Cr.Appeal No.332 of 2020, titled as Arhant Janardan Sunatkari
vs. The State of Maharashatra, sentence was suspended on the basis of statement of victim observing that victim had said in the trial, that her
statement to the police and narrative in statement under Section 164 Cr.P.C., was at the instance of Class Teacher.
26. In Bail Application No.2380 of 2021, titled as Praduman vs. The State (Govt. of NCT of Delhi), decided on 05.10.2021 by Single Bench of High
Court of Delhi, it was found by the Court that prosecutrix had given her different statements at three different times and in the MLC conducted prior
to registration of FIR she did not name the petitioner and MLC was conducted because she was below the age of 18 years and was found to be
pregnant and FIR was registered on next day when she named petitioner, but in statement recorded under Section 164 Cr.P.C., she did not name the
petitioner and during proceedings of bail, prosecutrix had stated that she had no objection for grant of bail. In that case, prosecutrix and petitioner were
more or less of the same age and were found in a relationship.
27. In Bail Application No.3259 of 2021, titled as Ram Sevak vs. State, decided on 03.12.2021, by High Court of Delhi, it was observed by the Court
that Court was prima facie satisfied that petitioner and victim were happily cohabiting with each other and raising their family as petitioner had married
victim with blessings of his family and statement of the victim was recorded before the Magistrate indicating that she had been peacefully living with
the petitioner and their two children, and that she was not kidnapped by the petitioner, but she ran away on her own accord.
28. In given facts and circumstnaces, aforesaid case law referred by learned counsel for the petitioner, is not relevant in present case.
29. A Coordinate Bench of this Court, after considering the material on record, had rejected the bail petition of the petitioner on 05.05.2021 by passing
a detailed order. After recording statement of victim in the Court, learned Special Judge has also rejected bail application of the petitioner on
17.11.2021. I do not find any changed circumstance to reconsider the bail of the petitioner otherwise.
30. Without commenting upon merits of the case, but taking into consideration material placed before me and rival contentions of parties and also
taking into consideration factors and parameters required to be considered for adjudication of bail application, I find that petitioner has failed to make
out a case for grant of bail. Therefore, petition is dismissed being devoid of any merit.
31. Needless to say that observation made hereinabove, shall not affect the merits of the trial and shall not be taken into consideration for any other
purpose.
