ROCKY SABHARWAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The instant application has been filed by the bail applicant under Section 439 of the Cr.P.C., for the grant of bail to him for his having allegedly committed offences punishable under Sections 354-B, 323, 376, 511, 341 of the Indian Penal Code recorded in F.I.R. No. 21 of 2015 registered at police station Nahan District Sirmaur, Himachal Pradesh. The status report has been filed by the Investigating Officer. Its contents have been perused. The records of the investigation have also been traversed with circumspection by this Court. Preponderantly, in the version qua the incident in the report lodged by her with the police under Section 154 Cr.P.C. she has omitted to disclose therein the fact of the bail applicant having inserted his finger in her private parts. The factum of the bail applicant having inserted a finger in her private parts occurs in her subsequently recorded statement under Section 164 Cr.P.C. The gap in the subsequently recorded statement portraying an inculpatory role to the bail applicant to the extent aforesaid was of three days since the lodging of the F.I.R. The genesis of the occurrence has to be truthfully disclosed or divulged by the complainant in the F.I.R., rather the F.I.R constitutes the prompt and initial version qua the genesis of the occurrence. The omission on the part of the prosecutrix at the initial stage to disclose the factum of the bail applicant having inserted a finger in her private parts per se renders the aforesaid factum subsequently unraveled by her in her statement under Section 164 Cr.P.C. to be tainted inasmuch, as, it containing an embellished or improved version qua the occurrence. In sequel, it cannot be fastened any truth. In aftermath, the offence constituted against the bail applicant under Section 376 IPC appears to be a contrived machination on the part of the prosecutrix and is prima facie false. Furthermore given the absence of material demonstrating that in the event of bail being granted to the bail applicant, there is every likelihood of the bail applicant fleeing from justice or tampering with prosecution evidence, as a sequel then this Court does not deem it fit and proper to order the prolongation of the judicial incarceration of the bail applicant. Accordingly, the indulgence of bail is granted to the bail applicant and the bail application is allowed. The bail applicant is ordered to be released from judicial custody wherein he is presently lodged on his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Sirmaur District at Nahan and also subject to his fulfilling the following conditions: