KHEM CHAND Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The instant petition has been filed by the bail/applicant/accused, under, Section 439 Cr. P.C., wherein he seeks indulgence, of his being ordered to be released from judicial custody, whereat he is extantly lodged, for, his allegedly committing offences, constituted under Section 376 of IPC and under Section 4 of POCSO Act, under FIR No. 217 of 2018, registered with Police Station, Sadar Solan.

(2.) The initial sexual intercourse, interse the bail- applicant and the prosecutrix, occurred at a stage when the latter was a minor, hence was lacking the legal capacity to mete consent, to, the apposite sexual overture(s), of, the bail- applicant, and, importantly, at, that stage she was aged two months less than 18 years. The afore occurrence is alleged to have taken place at Sadhna Guest House, located at Sadhupul Road, Kandaghat. For, the afore propogation of the prosecutrix, to, hence acquire credibility, (a) enjoined, both, the Investigating Officers to collect the original of the register hence whereunder entries, occur rather making disclosure(s) qua the accused alongwith the prosecutrix, on the fateful day, hence residing thereat, b) the signatures made against the apposite scribing(s) also, being sent to the FSL concerned, for rendition of an opinion thereon. However, the Investigating Officer concerned has failed to collect the original register, and, has also failed to send to the FSL concerned, the, signatures purportedly made by the bail-applicant, against, the apposite entries, existing thereon. C) Furthermore, the employee of the Hotel concerned has also failed to record any entry qua the bail-applicant alongwith the prosecutrix rather residing thereat.

(3.) In aftermath, prima-facie, at this stage, no credibility can be imputed to the propagation, of, the prosecution, qua the initial occurrence(s), which occurred thereat, significantly, when thereat the prosecutrix was a minor, hence was disabled to mete consent to the sexual overtures, of, the bail-applicant, being both credible or reliable. Contrarily, this Court is constrained to deprecate, and, censure the afore failure(s), of, the Investigating Officer concerned, hence to make the afore endeavors.