RAJESHWAR SINGH NEGI Vs. STATE OF H P

JUDGEMENT

(1.) THE present application has been filed by the bail applicant under Section 438 of the Code of Criminal Procedure as he apprehends his arrest for his allegedly having committed offences punishable under Sections 363, 366, 376, 376(2) (G) and 120 -B of the IPC and Sections 4 and 16 of the POCSO Act in FIR No. 53/14 of 18.09.2014 registered at Police Station, Bhawa Nagar, District Kannaur, H.P.

(2.) STATUS Report filed and perused. Its perusal divulges the fact that qua the purported occurrences, the prosecutrix recorded her statement before the learned Additional Chief Judicial Magistrate, Rampur on 21.01.2015 wherein she attributed an inculpatory role only to one Vijay Kumar. Therein she has omitted to attribute any inculpatory role to the bail applicant. However, subsequently in her further statement recorded by her before the learned Chief Judicial Magistrate, Reckongpeo on 9.2.2015 she attributed an inculpatory role to the bail applicant. The factum of her omission to initially on 21.01.2015 attribute any inculpatory role to the bail applicant and in her supplementary statement recorded on 9.2.2015 hers taking to do so, does per se influence an inference that the attribution of an inculpatory role to the bail applicant subsequently by her in her supplementary statement recorded before the learned Chief Judicial Magistrate, Reckongpeo on 9.2.2015 is obviously ingrained with the vice of afterthought as well as an improvement, consequently, it is bereft of any truth or veracity. The learned Deputy Advocate General contended that there is a sound explanation afforded by the prosecutrix to not name the bail applicant initially to be the person who perpetrated the alleged forcible sexual intercourse on her person and the same is grooved upon the factum of the intial statement having been made/recorded by her under compulsion and duress exercised upon her by the bail applicant. However, the said argument cannot be carried forward at this stage obviously given the fact that during the course of recording of her initial statement by the learned Additional Chief Judicial Magistrate, Rampur and during the course of whose recording when he is mandatorily obliged to while recording her statement ensure that it is shred of or bereft of any element of exercise of any duress or compulsion upon her, which duty as cast upon him cannot at this stage be construed to have not being diligently performed by him, besides the presumptive fact of a certificate, as is ordained to be recorded by the Magistrate evidencing the fact of the statement of the complainant/prosecutrix having been elicited by him while its being free from exercise of any duress or compulsion upon her qua the occurrence existing thereon, renders rudderless the contention addressed before this Court by the learned Deputy Advocate General. In face there of, prima facie at this stage, it is apparent that no offence is constituted against the bail applicant. Accordingly, the bail application is allowed and order of 11th February, 2015 is made absolute subject to the compliance of further conditions: