( 2025:HHC:17525 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No.642 of 2025 Reserved on: 26.05.2025 Date of Decision: 04.06.2025. Kapil Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Mohar Singh, Advocate. For the Respondent : Mr. Prashant Sen, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 73 of 2024, dated 05.11.2024, registered for the commission of offences punishable under Sections 64(1), 127(2) of Bhartiya Nyaya Sanhita (“in short BNS”), 2023 and Section 4 of Protection of Children from Sexual Offcences Act (“in short POCSO Act”), 2012 at Police Station East Shimla, District Shimla, H.P. The investigation is complete and the charge sheet 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2( 2025:HHC:17525 ) has been filed before the Court. The prosecution's story is false, and there is nothing to connect the petitioner with the commission of a crime. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, the petition. 2. The petition is opposed by filing a status report asserting that the victim is aged 15 years and is studying in Class 9th. Victim was found missing on 04.11.2024. Victim mother searched for her and found her on the morning of 05.11.2024. Victim revealed on inquiry that she was with the present petitioner, who had raped her. The police registered the FIR. The victim was medically examined. The police arrested the petitioner, and he was sent for medical examination. The doctor preserved the samples of the victim and the petitioner. The victim identified the room where she was raped. The police seized a blanket from the room. These were sent to the SFSL, Junga, and as per the report of analysis, human semen was detected on the blanket. The DNA analysis showed that the DNA profile obtained from the blanket matched the DNA profile of the petitioner. As per the report of the doctor, there was nothing to suggest that the petitioner was incapable of performing sexual intercourse. No 3( 2025:HHC:17525 ) signs of recent penetration of vagina/anus were found in the victim’s medical examination. As per the admission form, the victim was born on 05.08.2009, and she was aged 15 years 03 months at the time of the commission of the crime. The charge sheet was filed before the Court on 31.12.2024. The charges were framed on 03.01.2025. The statement of the victim was recorded on 20.02.2025, and the matter was listed for recording the statements of witnesses on 10.04.2025 and 11.04.2025. Hence, it was prayed that the present bail petition be dismissed. 3. I have heard Mr. Mohar Singh, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent-State. 4. Mr. Mohar Singh, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. The story of the prosecution is inherently improbable. There is nothing to suggest that the victim had shouted for help when she was allegedly taken by the petitioner to his room and confined therein. The police have filed the charge sheet, and no fruitful purpose would be served by detaining the petitioner in custody. The statement of the victim has been recorded, and the 4( 2025:HHC:17525 ) petitioner cannot influence the victim. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent-State, submitted that the victim was a minor and incapable of consent; therefore, even if she had not raised any hue and cry, that would not help the petitioner. The report of analysis shows that the DNA of the petitioner was found in the blanket recovered from his room. This report, prima facie, connects the petitioner with the commission of a crime. Considering the gravity of the offence, the petitioner is not entitled to bail. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed on page 783: - “Relevant parameters for granting bail 26. While considering whether bail ought to be granted in a matter involving a serious criminal offence, the Court must 5( 2025:HHC:17525 ) consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .] 8. This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence 6( 2025:HHC:17525 ) of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: — “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the bail application and observed: 7( 2025:HHC:17525 ) “4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 9. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479. 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report shows that the petitioner had taken the victim with him on the night of 04.11.2024, and raped her in his room. The Medical Officer examined the victim on 05.11.2024 and issued a final report dated 21.12.2024, stating that there were no signs of recent penetration of vagina/anus. There was no 8( 2025:HHC:17525 ) recent injury mark on the victim’s body. This report, prima facie, does not support the prosecution's case regarding the recent sexual intercourse with the victim. 12. A heavy reliance was placed upon the recovery of the blanket from the room of the petitioner and the presence of DNA of the petitioner in the blanket. This will not help the prosecution. The blanket was recovered from the petitioner’s room, and the presence of DNA of the petitioner on the blanket does not prove the commission of a crime. The presence of DNA of the victim in the blanket would have corroborated her version that she was raped in the room. 13. There can be no dispute with the proposition of law that ordinarily the testimony of the victim is to be accepted as correct, however, in the present case, the report of the Medical Officer, prima-facie, makes her statement suspect that she was raped during the night of 04.11.2024 by the petitioner in his room. Hence, prima facie, there is insufficient material to detain the petitioner in custody. 9( 2025:HHC:17525 ) 14. The status report shows that the statement of the victim has been recorded. Thus, the petitioner will not be able to intimidate her. 15. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions: (i) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. (ii) The petitioner shall attend the trial and will not seek unnecessary adjournments. (iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court. (iv) The petitioner will surrender his passport, if any, to the Court and; (a) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, 10( 2025:HHC:17525 ) the same will be intimated to the Police/Court within five days from the date of the change. 16. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move the Court for cancellation of the bail. 17. The observations made hereinabove are regarding the disposal of the petition and will have no bearing whatsoever on the case's merits. 18. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of Sub Jail Kaithu, District Shimla, H.P. and the learned Trial Court by FASTER. 19. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioners, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court. (Rakesh Kainthla) Judge 04th June, 2025 (Shamsh Tabrez) Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225878f23c9ea27b2810 46985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec939375291962d0d90d0948 76bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document Location: Date: 2025-06-04 13:36:14 KARAN SINGH GULERIA