AJAY KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Bail petitioners, namely Ajay Kumar @ Kala and Bihari Lal, who are behind the bars since 30/9/2021 have approached this court in the instant proceedings filed under S. 439 Cr.P.C, for grant of regular bail in case FIR No. 75 of 2021, dtd. 18/9/2021, registered at Police Station Lambagaon, District Kanga, Himachal Pradesh under Ss. 376(1), 376(D), 354, 120-B, 201 of IPC, Ss. 6 and 17 of Protection of Children from Sexual Offences Act, Sec. 181 of Motor Vehicles Act and Ss. 3(i)(w)(i)(ii) 3(II)(va) of SC and ST Act. Respondent State has filed status report and SI Kesar Singh has come present with record. Record perused and returned.

(2.) Careful perusal of the record /status report made available to this court reveals that on 18/9/2021, victim-prosecutrix, aged 17 years (name withheld) lodged a complaint at Police Station Lambagaon, District Kangra, Himachal Pradesh, alleging therein that on 3/9/2021, while she had gone to Balakrupi to attend birthday of granddaughter of her aunt (Tai),bail petitioners sexually assaulted her against her wishes. She further alleged that on 7th/8th 9.2021, when her aunt had gone to earn daily wages and uncle was sleeping under the influence of liquor, her sister-in-law sent two persons to her and they took her to Bohar (room in upper storey of the house) and sexually assaulted her against her wishes. She alleged that when one person was committing sexual assault upon her, another was making her video. She disclosed to the police that on 10/9/2021, she went to Palampur to meet her friend but on 11/9/2021, while she reached Palampur bus stand, she received telephonic call from some person that you reach Kangra, otherwise video made at the residence of her sister-in-law would be made viral. She alleged that after having received aforesaid telephone call, she went to Kangra, from where two persons took her to Jwala Ji and sexually assaulted her against her wishes in a hotel and thereafter dropped her at Nadaun. On the basis of aforesaid complaint made by the victim/prosecutrix, FIR, as detailed hereinabove, came to be lodged against the present bail petitioners. Subsequently, victim-prosecutrix in her statement recorded under S. 164 Cr.P.C alleged that on 6/9/2021, two boys namely, Vivek Chaudhary and Savan came to her aunt 's house and called her outside the window. She alleged that person namely Savan sexually assaulted her in a van and other person, Vivek Chaudhary was standing outside. She alleged that though Vivek Chaudhary did not commit any wrong with her, but hurled abuses and misbehaved with her. In her statement recorded under Sec. 164 Cr.P.C, she alleged that on 7/9/2021, at 3-4 PM, Kala alias Ajay Kumar alongwith other person came and sexually assaulted her in the Bohar (room in the upper storey of house). She further deposed before the Magistrate that she went to Kangra from where, Rahul took her to Jwalaji in Free India Bus and sexually assaulted her in a hotel. On the basis of aforesaid statement made by the victim/prosecutrix under sec. 164 Cr.P.C., persons namely Vivek Chaudhary, Savan and Rahul also came to be named in the FIR alongwith the present bail petitioners. All the above accused saves and except present bail petitioners named in the FIR already stands enlarged on bail. Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioners, they have approached this court in the instant proceedings for grant of regular bail.

(3.) While fairly admitting factum with regard to filing of the Challan in the competent court of law, Mr. Sudhir Bhatnagar, learned Additional Advocate General submits that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve leniency. Mr. Bhatnagar, further submits that there is overwhelming evidence available on record suggestive of the fact that bail petitioners herein taking undue advantage of the innocence and minority of the victim-prosecutrix, sexually assaulted her against her wishes, but even otherwise consent, if any, of the victim-prosecutrix being minor is immaterial and, as such, prayer made on behalf of the bail petitioners for grant of bail deserves outright rejection.