GAURAV Vs. STATE OF H P

JUDGEMENT

(1.) The instant petition has been instituted by the bail petitioner, under, Sec. 439 Cr.P.C, for, his being released from judicial custody, wherein he is extantly lodged for his allegedly committing offence(s) punishable under Sections 363, 373, 506 of the Indian Penal Code, and, Sec. 4 of the Protection of Children From Sexual Offences Act (POCSO), in respect whereof, FIR No. 295 of 2016 of 23.12.2016, is lodged, at Police Station Solan, District Solan, Himachal Pradesh.

(2.) The learned Additional Advocate General, has, apprised this Court that, both, the prosecutrix, and, her mother hence resiling, from, their respectively recorded previous statements. However, he submits that the prosecutrix, may not, be construed to resile from her previous statement, recorded in writing, before the Magistrate concerned (i) even, when, she testified qua her making, the, afore previous statement, at the behest of the police, without, her further stating that she was compelled, by the Investigating Officer, to render the afore statement, before the learned Magistrate concerned. However, the afore submission made before this Court, by the learned Additional Advocate General, is not accepted, (ii) given the prosecutrixs' testification qua hers making the afore statement under Sec. 164, before the learned Magistrate concerned, at the behest of the police, rather hence holding/tinges, of, it being prima facie construable, to be a tutored statement. Furthermore, when the prosecutrix was confronted, with, the affirmative report, made by the FSL concerned, upon the relevant items, sent thereat for examination, she has feigned ignorance qua collection thereof occurring at her instance, thereupon the incriminatory effect of any affirmative DNA report, made by the FSL concerned, upon, the relevant items, is visibly effaced.

(3.) The bailapplicant/accused is suffering judicial incarceration, for, two years, hence bearing in mind the aforesaid factum, this Court deems it fit and appropriate, (i) importantly, when the Investigating Officer has reported that the bailapplicant, has throughout associated, hence, in the relevant investigation, to, hence afford, the facility of bail in favour of the bail applicant/petitioner. Moreso, when at this stage, no evidence has been adduced by the prosecution, demonstrating, that in the event of bail being granted to the bail applicant/petitioner, there being every likelihood of his fleeing from justice or tampering with prosecution evidence, Accordingly, the indulgence of bail, is, granted to the bail applicant/petitioner, on, the following conditions: