RAHUL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The instant petition has been filed by the bail/applicant/accused, under, Sec. 439 Cr. P.C., wherethrough, he seeks indulgence, of his being ordered to be released from judicial custody, whereat, he stands extantly lodged, for, his allegedly committing offences, constituted under Sections 377, 323, 506 IPC, and, under Sec. 4 of the Protection of Children from Sexual Offences Act, borne in case FIR No. 129 of 2017, registered with Police Station, Kotkhai, District Shimla.

(2.) The victims/minors, who were subjected, to, offence(s) borne in the provisions of Sec. 377 of the IPC, have not yet stepped into the witness box, given one of them, not being traceable. However, even if, upon theirs' stepping into witness box, though, they yet support their previously recorded statements, (a) nonetheless, efficacy thereof, at this stage, prima-facie, may be blunted by the factum of the Doctor concerned, who immediately, subsequent to the afore offence(s), being committed upon the victims, hence subjected them to medical examination, rather upon his stepping into the witness box, as PW-4, though, in his examination-in-chief, makes a disclosure, qua his making an opinion, qua there being nothing to suggest that the persons, so examined, not undergoing sexual act, (b) yet when in his crossexamination, conducted by the learned defence counsel, he has acquiesced, to, suggestion(s) put thereat, qua clinically nothing emanating hence suggestive, of, commission of the act of sodomy, upon the victims, (c) given erected penis releasing juices, and, possibility, of, occurrence thereof, on the bodies of the victims, being an imminent sequel, to the afore act, being perpetrated, on, the person(s) of the minors/victims. However, with his further making a disclosure, in his cross-examination, conducted by the learned defence counsel, that the afore juices, were not observed by him, during, the course of his, immediately subsequent to the occurrence(s), hence subjecting the victims to medical examination, to rather hence occur, on their respective persons, (d) and when the Public Prosecutor concerned, thereafter, hence did not proceed to, with the permission of the Court, hold a further cross-examination, of the afore witness, for hence eliciting from him, any answer to any suggestion, qua upon, his conducting the medical examination of the victims, he had asked the victims whether they had washed their person(s), (e) nor when any echoing, in consonance therewith, is, borne in the apposite MLC. Consequently, for want thereof, it, prima-facie, appears that the offences attributed, qua the bail-applicant, do not, carry the relevant tenacity, (f) moreso, when, at this stage, no evidence has been adduced by the prosecution, that in the event of bail being granted to the bail-applicant, there is hence every likelihood of the bail-applicant fleeing from justice, or tampering with prosecution evidence, thereupon, this Court is constrained to make an order that the bail-applicant be released from judicial custody, however, subject to compliance, with, the hereinafter extracted conditions:-

(3.) Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.