IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No. 911 of 2010 Date of Decision: 10th September, 2010 __________________________________________________________ Anil Sharma ….Petitioner. Versus State of H.P. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Mr. Anup Chitkara, Advocate. For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner has petitioned this Court under Section 439 of the Code of Criminal Procedure praying for grant of bail. The petitioner is charged for offences under Sections 363,366-A, 376 read with Section 34 of the Indian Penal Code. 2. The case is based on the statement of the prosecutrix alleging that she was a student of Government Middle School, Purani Mandi and now she has left study there and proceeded to complete her education from National Open School Tarna Podhi. On 10.7.2010 at around 6 P.M. when she had gone to Indira market bazaar, Mandi, 1 Whether Reporters of Local Papers may be allowed to see the judgment?Yes. 2 Ronit resident of Mohaan Mohalla and Kartik who were in Alto car bearing No. HP-33-2102 met her and they persuaded her to accompany them for a joy ride to Pandoh. She then states that Kartik proceeded to rape her in the car which was parked in a lonely place near Pandoh dam and at that time Ronit was standing outside the car. She also states that on 9.7.2010 Ranit had invited her to his house where she was forcibly subjected to sexual intercourse. She then states that these two persons talked on the phone and thereafter took her to Kullu in a car. On the way when they reached near Thalot at around 1 AM, one Maruti van No. HP-33B-2965 was parked there where there were two other persons. Both Ronit and Kartik pushed her in that van. There Gopal son of Nanak Chand paid Rs. 5000/- to Ronit and Kartik. She was informed by Gopal that he will pay Rs. 15,000/- to her at Manali, where she would stay with him in a hotel. He had come to pick up her from Manali. She then states that she was crying and shouting, but driver Tek Singh son of Bhoop Singh and Jeevan son of Hotam Ram started taking her towards Manali and Gopal started caressing/pressing her private parts. She kept crying and shouting for help and ultimately the police naka at Dhobhi Pull rescued her from their clutches. 3. Her medical examination and the report of the Forensic Science Laboratory shows that she was subjected to sexual assault. During medical examination, she had named Kartik, Ronit, Gopal and Tek Singh as the persons who raped her. In the First Information Report, she again named these four persons. 4. The learned Sessions Judge rejected the application of the petitioner herein on the ground that the petitioner had met the other three accused prior to the incident and that there was possibility 3 that the accused had been sent by the applicant to bring this girl to Shingar hotel where the applicant was staying. 5. I have heard learned counsel for the parties and have gone through the record. The application has been opposed by the learned Additional Advocate General on the ground that there is a serious offence more disclosed especially when the girl is of tender age and has been sexually assaulted by four persons and the manner of abduction leaves no doubt that the purpose of transporting from Kullu to Manali was nothing but for being used for sexual exploitation. The facts disclosing a very serious offence, learned Additional Advocate General submits that the application deserves rejection outright. 6. Learned counsel appearing for the petitioner urges that there is no iota of evidence on record to link him with the entire episode. Taking the statement of prosecutrix on its face value it is only the other accused, who had illicit sexual relations with her and the petitioner has nothing to do with the offence. He submits that the statement of prosecutrix shows that she was roaming with two of the accused for about two days and the petitioner did not know have any knowledge of this fact nor can it be attributed to him as such. Even if the statement of prosecutrix is accepted without testing it with cross examination, the petitioner is no where involved in the case. 8. True that in serious offences, bail is an exception, but it is also true that a person cannot be detained where there is no evidence connecting him with the crime or if the circumstances are such which raise a doubt of his involvement in the crime. Primafacie, I do not find that the petitioner has been named anywhere as one of the accused. As noticed by me, the prosecutrix states that for two days 4 she was roaming about with two accused, one of whom subjected her to sexual intercourse in his residence and second in his car. Without going into further merits of the respective case of the parties, I deem it a fit case where the petitioner can be released on bail subject to the following conditions: (i) That the petitioner shall furnish a personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned Addl. Sessions Judge, Fast Track Court, Kullu; (ii) That the petitioner shall join investigation on each and every date as and when directed by the Investigating Officer; (iii) That the petitioner shall not tamper with the prosecution evidence or in any manner try to overawe or influence or intimidate the prosecution witnesses; (iv) That he shall not obstruct the smooth progress of the investigation as well as trial; (v) That the petitioner shall attend the Court on each and every date of hearing unless so exempted by the trial Court in accordance with law; (vi) That he shall not abscond from the jurisdiction of learned Sessions Judge at Kullu and Mandi; (vii) In case of violation of any of the conditions imposed, he shall be arrested forthwith without reference to Court. It will be open to the prosecution to apply for any such other or further condition imposed on the petitioner as it may deem necessary in the facts and circumstances of the case and in the interest of justice. It will also open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. In case the petitioner violates any of the conditions as imposed by the trial Court, he shall be taken into custody forthwith without reference to Court. The 5 petitioner shall furnish bail bonds, as directed above, within a period of four weeks from the date of presentation of this order. 9. This order is confined to the petitioner herein and is not to be considered as precedent to be used for other accused. Petition stands disposed of. Dasti copy on usual terms. (Dev Darshan Sud) Judge September 10th , 2010(ms)