CRMPM/1070/2011 of VIRENDER KUMR Vs STATE OF HP on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.M.P(M) No. 1070 of 2011.

Date of decision: 29.12.2011.

Virender Kumar s/o Sh. Narayan Dass, r/o Beli Changan, P.O. Nangal Bhur, Tehsil & District Pathankot, Punjab.

Vs.

…..Petitioner.

State of Himachal Pradesh

…. Respondent.

Coram

The Hon’ble Mr. Justice Kuldip Singh, Judge.

Whether approved for reporting?1 No

For the petitioner : Mr. Vivek Singh Thakur, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S.Rana, Asstt. Advocate General.

Kuldip Singh, Judge (Oral).

This is an application, under section 439 Cr.P.C., for releasing the petitioner on bail in FIR No. 156/11 dated 10.5.2011, under sections 376, 506, 294 IPC, section 6 of Indecent Representation of Women (Prohibition) Act, 1986 and sections 66, 67-A of Information Technology Act, 2000.

2. It has been stated in the application that petitioner has been falsely implicated in the case. It has been stated no date of commission of alleged offence has been disclosed nor place of occurrence has been mentioned in the FIR. The petitioner has no role to play in the commission of offence. The FIR is false and without any basis.

3. The petitioner belongs to reputed family. He is innocent having old aged parents. The learned Addl. Sessions Judge (I) Kangra at Dharamshala while dismissing the bail application of the petitioner on 6.12.2011 has not properly appreciated the facts. The case has been registered at the instance of one Smt. Rachna Devi. The petitioner is in custody since long. The further detention of the petitioner is not necessary nor it will serve any purpose. The petitioner is ready to furnish bail bonds as per the directions of this court. The prayer has been made for releasing the petitioner on bail.

4. The bail application has been opposed by the State by filing status report. It has been stated that on 10.5.2011, the prosecutrix came to the police station and reported the matter. She has stated that she appeared in +2 papers at Govt. Senior Secondary School, Indora, 7-8 months prior to reporting the matter to the police she had been going to the school at Indora. The petitioner used to tease her when the prosecutrix used to go to school. It has been stated that seven months prior to reporting of the matter, after the school she was waiting for the bus outside the school gate, the petitioner came there on a motorcycle, he extended threats to the prosecutrix and out of fear the prosecutrix accompanied the petitioner on motorcycle and went to Sangam restaurant.

5. It has been stated that she was offered cold drink, but immediately thereafter she became unconscious. On regaining consciousness, she found herself naked. The prosecutrix asked the

petitioner what he had done. The petitioner asked her to keep quiet otherwise he would kill her. The prosecutrix went to her house and on account of fear did not tell the incident to her mother. The petitioner started blackmailing the prosecutrix by saying that he had taken her naked photographs and asked her sexual favour otherwise he would send her photographs through SMS in the area. The prosecutrix due to fear did not disclose the happening to anyone and petitioner committed sexual intercourse with her several times under threats. On 9.5.2011, her cousin Vijay Kumar told that somebody had released her nude picture through SMS. The prosecutrix disclosed the entire story to her mother, who contacted Pradhan. They advised her to report the matter to the police. On this case was registered, the petitioner was arrested on 11.5.2011 and since then he is in custody. The prayer has been made for rejection of bail application. 6. Heard and perused the police file. It has been submitted by the learned counsel for the petitioner that investigating agency has concocted a false story against the petitioner. In the FIR itself, no date, place of alleged occurrence has been disclosed. The prosecution case is false and highly improbable. The prosecutrix was above 16 years of age at the time of alleged occurrence. The learned Addl. Advocate General has stated that there are serious allegations against the petitioner. It has been stated by learned Additional Advocate General that date of birth of the prosecutrix is 10.7.1993, but it is a case where petitioner has allegedly committed sexual intercourse with the prosecutrix against her wish and by extending threats to her. The petitioner took naked photographs of the prosecutrix and sent those photographs through SMS in the area. The prosecutrix could not report the matter earlier out of fear but when the obscene photographs of the prosecutrix were circulated in the area then she disclosed the entire story to her mother and ultimately lodged the report with the police. It has been stated that challan has been submitted in the court on 2.8.2011 and now the case is fixed before the learned Addl. Sessions Judge (1), Kangra at Dharamshala on 16.1.2012.

7. The prosecutrix in the FIR has briefly narrated the occurrence and has stated that petitioner committed sexual inter course with her by extending threats and saying that he would circulate her nude photographs through SMS in the area. The petitioner under this garb, several times committed sexual intercourse with the prosecutrix. It has been stated that she was given cold drink and immediately thereafter she became unconscious and when she regained consciousness, she found herself naked. The allegations against the petitioner are serious. In the FIR, entire history is not required to be given. The prosecution will be required to prove the case during trial. Prima facie, there is material against the petitioner. He is not entitled to bail at this stage. There is no merit in the petition, which is dismissed.

8. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case. The application stands disposed of.

December 29, 2011. ( Kuldip Singh ) (Hem) Judge.