Shamsher v. State Of Haryana
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29.02.2020 Sahlawas, District Jhajjar 363, 366-A and 34 of Indian Penal Code, 1860 (for short 'IPC') (Sections 4, 6, 17 of Protection of Children from Sexual Offences Act, 2012 (for brevity 'POCSO Act added later') 2 3 $ $
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On 17.03.2020, an information was received regarding recovery of the victim by the police officials of Police Station Kanina in connection with another FIR bearing No. 404 dated 29.11.2019 under Section 363 and 366 of IPC The concerned Investigating officer of this case reached at Police Station Kanina and recorded the statements of the victim and her mother on the basis of offence under Section 17 of POCSO Act was added. The victim was medically examined on the same day. Her statement under Section 164 Cr.P.C. was recorded on the basis of which offences under Sections 4 and 6 of POCSO Act were also added. The co-accused Sunder who was in custody in case bearing FIR No. 404, joined the investigation of this case. He suffered a disclosure statement on the basis of which offence under Section 120-B IPC was added.
The motorcycle which was used by the accused-Sunder at the time of occurrence was also recovered. The petitioner was arrested on 06.08.2020. He was also medically examined. The co-accused Nar Singh and Vikram were also arrested subsequently and after completion of necessary investigation and usual formalities, challan under Section 173 Cr.P.C. was presented as against the present petitioner and co-accusedSunder, Vikram and Nar Singh.
was involved in the occurrence was arrested subsequently and supplementary challan was presented against him. The petitioner and coaccused are facing trial for commission of offences punishable under Sections 363/366-A read with Section 34 and 376 of IPC as well as under Sections 4, 6 and 17 of POCSO Act. The petitioner had moved an application for grant of bail before the learned Trial Court which has been dismissed vide order dated 29.03.2022.
3.
It is submitted in the petition and learned counsel for the petitioner had argued that the petitioner was not named in the FIR as one of the kidnappers/abductors of the prosecutrix nor the allegation that he had enticed the victim away have been levelled in the FIR. Even in her statement recorded under Section 164 of Cr.P.C. the prosecutrix has not implicated her in the commission of offence of kidnapping and had stated that she had gone with Sunder and Raju and was living with the petitioner willingly after solemnizing marriage with her own consent with him in the Court and did not want to initiate any action against the petitioner. It is further argued that in FIR No. 440 of 29.11.
2019 which was lodged by the complainant against the petitioner previously, neither the prosecutrix nor her mother had implicated him in commission of the offences for which he had been booked in the said case and both of them had resiled from their respective statements as recorded before the Court. Learned counsel for the petitioner has laid much stress on the point that in the statements so recorded in the abovementioned FIR No.
had deposed that in the school record was showing her to be under age as her husband had not mentioned the correct age of the petitioner in that record. 4.
It is further argued that now the prosecutrix under the pressure of her parents has changed her version while recording her sworn deposition before the Court and has claimed herself to be a minor at the time of occurrence which allegedly took place on 28.02.2020 infact, there was relationship between the petitioner and the prosecutrix since long and they have even solemnized marriage. The plea of the prosecutrix being below the age of eighteen years stands falsified from her own statement as recorded in FIR No. 404. The petitioner is in custody for over a period of more than three years. There are no chances of his intimidating the witnesses as prosecutrix and her mother who was complainant already stand examined. His further detention would not serve any useful purpose. Therefore, it is argued that he deserves to be extended benefit of bail. 5.
Status report has been filed by respondent-State as per which, there are specific and serious allegations against the petitioner to the effect that in connivance with him, the co-accused had taken away the prosecutrix out of her lawful guardianship and had handed over her custody to the present petitioner as on 28.02.2020. The prosecutrix has recorded her sworn deposition in the Court in this case stating that she had been taken by the coaccused to the petitioner who had kept her confined in a room and had repeatedly ravished her. He had impregnated her and her pregnancy was got aborted. It is submitted that the school record shows that the prosecutrix was a minor at the time of occurrence. It is further argued that the DNA report is
awaited. The prosecutrix has deposed that she had recorded her statement under Section 164 of Cr.P.C. under the pressure of petitioner and his family as on 17.03.2020. The allegations against the petitioner are quite serious in nature. The trial is going at a fast pace and there is nothing on record to show that there would be any undue delay in conclusion of the same. Therefore, it is argued that the petitioner does not deserve to be given concession of bail.
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