Thuma Ram v. State of Himachal Pradesh

The Hon(cid:146)ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? No For the Petitioner : Mr. L.S. Mehta, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. General Advocate Mr. J.S. Rana, Advocate General. Asstt. Kuldip Singh, J (Oral). This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No.126/11 dated 20.9.2011, registered at Police Station, Karsog, under Sections 376, 506 IPC.

2. It has been stated that petitioner has been falsely implicated in the above case. The petitioner has been arrested on

17.1.2012. The prosecution case is that on 10.3.2011, the parents and brother of the prosecutrix had gone to the house of maternal uncle Karam Singh of prosecutrix. The prosecutrix was alone in the _________________________ Whether the reporters of the local papers may be allowed to see the Judgment?Yes (cid:133)2(cid:133) house, she slept in her room after taking meals. At about 11 p.m. petitioner, who is the brother and also neighbour broke open the wooden bolt placed by the prosecutrix in the door and entered in the room. He committed forcible sexual intercourse with the prosecutrix. The petitioner thereafter threatened the prosecutrix to kill her in case she would disclose the incident to anyone. The petitioner after committing rape fled away from there.

3. It has been stated that the petitioner is innocent. He has committed no offence. The petitioner has been implicated falsely due to enmity. The petitioner is married and has two sons. The prosecutrix is about 40 years.

4. The alleged offence took place on 10.3.2011 and FIR has been registered on 20.9.2011. The prosecutrix is mentally retarded. The case has been registered implicating the petitioner in absence of legal evidence on record. The brother of the prosecutrix arranged a Panchayat. The family members of the petitioner had made clear to the Panchayat that petitioner was being implicated falsely in the case. The petitioner earlier filed bail application which has been dismissed by learned Addl. Sessions Judge, Mandi on 5.3.2012. The petitioner is ready to furnish bail bonds in accordance with directions of the Court. The submission has been made for releasing the petitioner on bail. The trial of the case will take some time. In these circumstances no purpose will be served by keeping the petitioner for indefinite period in jail.

5. The status report has been filed. It has been stated that case has been registered on 20.9.2011 on the statement of prosecutrix (cid:133)3(cid:133) who came in the police station alongwith her close relations. It has been stated that prosecutrix is about 40 years and speaks less. The complainant has stated that on 10.3.2011, her parents and brother had gone as guests in the house of her maternal uncle Karam Singh. The prosecutrix was alone in the house. She was sleeping alone in the room after taking meals. She had closed the door and put wooden bolt. At about 11 p.m. , the petitioner after breaking wooden bolt entered her room. The petitioner tied the face of the prosecutrix with her scarf and committed twice forcible sexual intercourse with her. The petitioner thereafter threatened the prosecutrix not to disclose the incident to anyone otherwise he would kill the prosecutrix. The petitioner thereafter ran away. The prosecutrix did not tell the incident to anyone due to fear. On 19.9.2011 the prosecutrix disclosed the incident to her mother and aunt. The prosecutrix had been carrying the pregnancy of six months of petitioner. On this, case was registered.

6. The prosecutrix was got medically examined on 21.9.2011. The prosecutrix was referred to IGMC, Shimla. The doctor opined that prosecutrix is suffering from mental retardation. On 9.11.2011, IQ test of prosecutrix was got conducted at PGI, Chandigarh. On 30.11.2011 prosecutrix gave birth to a female child who died immediately after birth. The anticipatory bail application of the petitioner was rejected by High Court on 12.1.2012, the petitioner was arrested on 17.1.2012. The DNA report revealed that the petitioner is not the biological father of baby of prosecutrix. The challan has been submitted in the Court on 4.4.2012. The submission has been made for rejection of the bail application. (cid:133)4(cid:133)

7. Heard and perused the record. The allegation against the petitioner is that he committed forcible sexual intercourse with the prosecutrix on 10.3.2011. The alleged occurrence first time was disclosed by the prosecutrix to her mother and aunt on 19.9.2011 alleging that she was carrying six months pregnancy of petitioner. The case was registered on 20.9.2011. The prosecutrix gave birth to female child on 30.11.2011, who died immediately after birth. DNA test disclosed that petitioner is not the biological father of baby of prosecutrix. The petitioner is in custody since 17.1.2012. It has been submitted by learned counsel for the petitioner that learned Addl. Sessions Judge dismissed the bail application of the petitioner on

5.3.2012 and at that time DNA test to ascertain the biological father of female child of the prosecutrix was not available. The learned Addl. Advocate General has stated that such report was made available on

7.3.2012. Thus, keeping in view the facts and circumstances of the case the petitioner has made out a case for the grant of bail under Section 439 Cr.P.C.

8. In view of above, petition is allowed. The petitioner is ordered to be released on bail in FIR No.126/11 dated 20.9.2011, registered at Police Station, Karsog, under Sections 376, 506 IPC on his furnishing personal bond in the sum of ‘40,000/- with one surety of the like amount to the satisfaction of the Judicial Magistrate, Karsog with the conditions that the petitioner shall not overawe, terrorize the prosecution witnesses and the petitioner shall maintain absolute peaceful and lawful conduct during the pendency of the trial. (cid:133)5(cid:133)

9. The observations made in the judgment are for disposal of the bail application and the same shall not be construed as an expression of opinion on the merits of the case. Copy (cid:145)dasti(cid:146). April 19, 2012 (sks) (Kuldip Singh), Judge.