Deep Kumar v. State of H.P

The Hon(cid:146)ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the applicant : Ms. Nidhi Chawla, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General and Mr. J.S.Guleria, Law Officer. Kuldip Singh, Judge (oral). The petitioner has filed this application, under Section 438 Cr.P.C. for releasing him on bail in FIR No. 113/08, registered on

6.8.2008 at Police Station, Ghumarwin, District Bilaspur under Sections 376, 506 IPC. The respondent has filed status report.

2. Heard and perused the record. The facts in brief are that prosecutrix filed a complaint under Sections 376, 506 read with Section 34 IPC before Judicial Magistrate, Ghumarwin on 4.8.2008 with the prayer that her complaint be sent to Police Station, Ghumarwin under Section 156(3) Cr.P.C. The Judicial Magistrate Ist Class, Court No.1, Ghumarwin vide order dated 5.8.2008 sent the Whether the reporters of the local papers may be allowed to see the Judgment? (cid:133)2(cid:133) complaint to concerned S.H.O. to investigate the case under Section 156(3) Cr.P.C. and to proceed as per law. On this FIR No. 113 dated

6.8.2008 came to be registered at Police Station, Ghumarwin. The prosecution case in brief is that mother of the prosecutrix had died and her father Bhag Singh had performed second marriage. The prosecutrix in the last five years lived with Chanchlo Devi her mother(cid:146)s sister. Petitioner Deep Kumar is the husband of Chanchlo Devi. In the year 2003, the prosecutrix had performed marriage with Sunil Kumar but after about three months litigation started between them and the prosecutrix was turned out by her in-laws. She again started living with Chanchlo Devi and Deep Kumar. It has been alleged that at this stage accused sexually exploited the prosecutrix and started committing sexual intercourse with her and threatened her that he would kill her if she would inform anybody. The prosecutrix performed another marriage with one Bittu and she lived with him for hardly 20 days and thereafter she again returned to the house of Chanchlo Devi and Deep Kumar. Thereafter prosecutrix performed marriages at Sungal, Kahwi and Barthin but all failed. The prosecutrix every time returned to the house of Chanchlo Devi and Deep Kumar in village Harkurar. On 12.7.2008 without informing Chanchlo Devi and Deep Kumar, she went to Jallandhar at her (cid:147)Mamma-Mammi(cid:148) house, thereafter she filed complainant before the Judicial Magistrate, under Section 156(3) Cr.P.C. The petitioner had earlier filed bail application which was dismissed by learned Sessions Judge, Bilaspur on 30.8.2008. The prosecutrix is about 23 years of age. In her complaint to the learned Judicial Magistrate, she has (cid:133)3(cid:133) stated that she did not tell anybody about the incident as she was in state of fear. When police officials of Police Station, Ghumarwin reached her grand mother(cid:146)s house at Badehar and asked her and when her grand mother told the prosecutrix that Deep Kumar had lodged a complaint against her at Police Station, Ghumarwin, thereupon she narrated the incident to her Mamma and grand mother.

3. The learned counsel for the petitioner has submitted that petitioner is innocent. The petitioner is married and having two daughters. The mother of the prosecutrix had died and her father had contracted second marriage, therefore, in the interest of prosecutrix and keeping in view her age and relation with the petitioner and on the persuasion of the wife of the petitioner the prosecutrix was maintained, looked after by the petitioner by permitting her to live in his house. The prosecutrix in the last five years has performed five marriages but she could not settle anywhere. The complaint filed by her before the learned Judicial Magistrate establishes that she filed the complaint against the petitioner in retaliation to the move of petitioner against her. The petitioner is innocent. He has committed no offence. The petitioner has been falsely implicated. He is ready to join the investigation. The custodial interrogation of the petitioner is not necessary in view of the facts and circumstances of the case.

4. The learned Additional Advocate General has opposed the bail application on the ground that the prosecutrix has leveled serious allegations against the petitioner and keeping in view the (cid:133)4(cid:133) close relationship of the petitioner with the prosecutrix, he has prayed for dismissal of the bail application.

5. I have considered the rival contentions of the learned counsel for the parties. The prosecutrix had been residing in the house of the petitioner for the last about five years. She has alleged that petitioner had been sexually exploiting her but prior to the complaint, she never brought this fact to the notice of lawful authorities or near relatives or close friends. The prosecutrix cannot be termed as ordinary introvert woman. It has come in investigation that prosecutrix had already performed five marriages but not settled anywhere. The perusal of complaint filed by the prosecutrix before the learned Judicial Magistrate would show that she came to know that petitioner had taken some action against her and thereafter she filed the complaint against the petitioner. The prosecutrix is 23 years of age. In the facts and circumstances of the case, the custodial interrogation of the petitioner is not necessary. The petitioner has made out a case for grant of bail under Section 438 Cr.P.C. Accordingly, the application is allowed and it is directed that in the event of arrest of petitioner, he shall be released on bail in FIR No. 113/08 dated 6.8.2008, Police Station, Ghumarwin District Bilaspur under Sections 376, 506 IPC on his furnishing personal bond in the sum of Rs.10,000/- with one surety of the like amount to the satisfaction of Arresting Officer with the conditions that the petitioner shall continue to join the investigation as and when called upon by the Investigating Officer and shall not hamper the investigation or tamper with the prosecution evidence in any manner. (cid:133)5(cid:133)

6. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case.

7. Dasti copy on usual terms. September 18, 2008. (Hem) ( Kuldip Singh ) Judge.