JOGINDER Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 117 of 2020, dated 31.08.2020, under Sections 376 and 506 IPC and Section 6 of the POCSO Act, registered at Police Station Tissa, District Chamba, H.P.

(2.) As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is resident of the place. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.

(3.) Police report stands filed. As per the prosecution story, on 31.08.2020, the prosecurtrix (name withheld) accompanied by her parents, made a report to the police that she is a student of 10th standard and about six months back her massi died, so her mother and elder brother went to the house of her massi. Her father went to forest for grazing cattle and younger brother went to school. As per the prosecutrix, on that day, she was all alone in the house and their mule somehow got untied, so she called one Joginder (petitioner herein) to help her to tie down the mule. The petitioner came and helped her, thereafter, the petitioner forcibly committed rape on her. The petitioner threatened her not to divulge the incident to anyone. After some days, the petitioner again committed rape on her by threatening her. The petitioner used to call the prosecutrix time and again, but she refused. Due to the fear, the prosecutrix did not divulge the incidents to her parents and ultimately on 30.08.2020, she narrated the entire incident to her family members. Upon the complaint, so made by the prosecutrix, police machinery was set into motion and a case under the apt sections was registered against the petitioner and the investigation ensued. The prosecutrix was medically examined and she was found pregnant for 22 weeks and 06 days. On 31.08.2020 the petitioner was arrested and was medically examined. Thereafter, the police recorded the statement of the prosecutrix under Section 164 Cr.P.C., police visited the spot of occurrence and all the codal formalities were completed. Statements of the witnesses were recorded under Section 161 Cr.P.C. Record qua the date of birth of the prosecutrix was procured by the police and on 17.09.2020 the prosecutrix was sent to Child Welfare Committee, Chamba, and ultimately on 24.09.2020 the prosecutrix was sent to Naari Sewa Sadan, Mashobra, Shimla. During the course of further investigation, it was unearthed that the petitioner is related to the prosecutrix, as brother. As per the DNA report, the DNA profile obtained from the blood sample of the petitioner was not found consistent as biological father of DNA profile of the newborn child of the prosecutrix. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious offence, there is possibility that in case at this stage the petitioner is enlarged on bail, he may flee from justice or tamper with the prosecution witnesses, so the bail application of the petitioner be dismissed.