KAPIL KUMAR Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THE instant petition has been filed by the bail petitioner under Section 439 Cr.P.C., for his being released from judicial custody wherein he is presently lodged, for his having allegedly committed offences punishable under Section 3(i), (xi), (xii) of SC&ST Act, Section 4 of POCSO Act & Sections 376, 506 of the Indian Penal Code, recorded in FIR No. 30/2015 of 4.5.2015, registered with Police Station Shillai, District Sirmaur, H.P.

(2.) THE Investigating Officer has filed a detailed status report. The initial version, as spelt out by the mother of the prosecutrix in the report lodged by her qua the incident before the police Station concerned, unravels the factum that about 2/3 months prior to the occurrence, the minor prosecutrix (aged approximately 15 years) was sent by her parents to look out for or search for their missing goat. She heeded to besides acceded to the request of her parents. However, even though, she had proceeded to launch the necessary search in the evening, yet she returned home on the succeeding day. The mother of the prosecutrix has unraveled, in her report lodged before the police station concerned, the fact that the prosecutrix on her returning home on being asked as to where she was throughout the night hers having disclosed that she had put up with one Surto Devi. She in conflict with the version qua the incident comprised in the opening paragraph of the F.I.R. wherein she on a prompt elicitation from the prosecutrix qua her whereabouts in the night preceding 2/3 months hitherto was communicated by the latter of hers having stayed overnight with one Surto Devi, has in the latter paragraph thereof attributed an inculpatory role to the bail applicant arising from the fact of the prosecutrix having 15 days prior to its lodging divulged to her the name of the bail applicant to have perpetrated forcible sexual intercourse upon her, obviously with an open rife inter -se contradiction existing in the opening and the latter part of the F.I.R. lodged qua the occurrence renders it to be imbued with the vice of prevarication. Consequently, it acquires a taint of falsity. It appears that even when a manifest procrastination has occurred in the lodging of the F.I.R. qua the incident, the complainant has concocted the fact of threatenings having been meted out by the father of the bail applicant, along with two co -villagers, to the complainant on a day preceding to the lodging of the F.I.R. arising from theirs grazing their cattle in the fields. Aggravated momentum to the aforesaid inference of concoction is lent by the factum of even when 15 days prior to the lodging of the F.I.R. the prosecutrix had divulged the name of the bail applicant to be the person who perpetrated forcible sexual intercourse on her, hers having omitted to, in quick spontaneity thereto or with utmost dispatch report the matter to the Police Station concerned. It appears that to camouflage the delay in the lodging the F.I.R., the complainant has invented a story of the father of the bail applicant, along with two co -villagers, having a day prior to the reporting of the incident to the police having meted out threatenings arising from the purported act of the complainant grazing their cattle in the fields. Obviously when on the day succeeding to the purported meting of threatenings by the father of the bail applicant, along with two co -villagers, to the complainant, she met Kedar Singh Jindal, it hence appears that prior to its lodging there were confabulations inter -se the complainant and Kedar Singh Jindal, who concomitantly then inspired and engineered the lodging of the F.I.R. against the bail applicant.

(3.) FURTHER it appears that the offences constituted under Section 3(i), (xi), (xii) of SC&ST against the accused are without application of mind and merely on the strength of the prosecutrix being a minor and hers belonging to the SC community. However, when the discussion hereinabove displays that no prima facie offence is constituted against the bail applicant under Sections 376 & 506 of Indian Penal Code, in face thereof prima -facie concomitantly no offence under Sections 3(i), (xi), (xii) of SC&ST Act is constituted against the bail applicant.