Rajinder Kumar vs State Of Himachal Pradesh

 Anoop Chitkara, J

The petitioner, aged 19 years, incarcerating upon his arrest for raping his first cousin, a minor girl aged 13 years, has come up before this Court

seeking regular bail on the grounds that he never had any coitus with her and the case was due to some misunderstanding, which now stands

explained and clarified.

Based on a complaint, the police arrested the petitioner on 23.9.2020, in FIR No.350 of 2020, dated 22.9.2020, registered under Sections 376 and

506 of Indian Penal Code, 1860, (IPC), and Section 6 of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act), in Police Station

Sundernagar, District Mandi, Himachal Pradesh, disclosing cognizable and non-bailable offences.

Ld. Counsel for the petitioner states on instructions that the petitioner has no criminal history relating to the offences prescribing sentence of greater

than seven years of imprisonment or when on conviction, the sentence imposed was more than three years. Even the status report does not reveal any

criminal history.

Briefly, the allegations against the petitioner are that on 22.9.2020, Police Station Sundernagar, District Mandi, H.P received a communication from

Civil Hospital, Sundernagar to the effect that a girl aged 13 years, who is pregnant, has visited hospital. On this, the investigator reached the concerned

hospital, where they met the mother of the victim.

On inquiry, the mother of the victim made a statement under Section 154, Cr.PC that the victim is a student of class-IX and the petitioner, who is

the son of her sister-in-law (Nanad), stays with her in her house for the purpose of his studies. She further stated that today morning, the victim

informed her about abdominal pain. On this, she brought her for medical check up in hospital at Sundernagar. The concerned doctor advised the victim

to go for ultrasound examination. After ultrasound on seeing its report, the concerned doctor apprised the complainant, the mother of the victim that

her daughter is pregnant. On this, she enquired from her daughter that who is responsible for this pregnancy and upon this, she revealed to her mother

that 5-6 months ago, the petitioner had forcibly committed coitus with her. The petitioner had also threatened her to do away with her life, in case she

revealed this incident to anyone. Based on this, the police registered the FIR mentioned above.

During investigation, the Medical Officer clarified in Medico Legal Certificate (MLC) and wrote about the pregnancy, which is extracted as

follows:-

“On Ultrasomography- There is single ongoing Intra-uterine Pregnancy of approximately 18 week 3 days of Gestational age.â€​

After that, the Medical Officer referred the victim to a gynecologist at higher centre. On next day, i.e., 23.9.2020, the victim again visited the Police

Station alongwith her mother and the mother made a supplementary statement under Section 161, Cr.PC. She told the investigator that from April,

2020, for a period of 3-4 months, the victim did not mensurate. Upon this, She took the victim to Civil Hospital, Sundernagar on 22.9.2020, where the

doctor told her that the victim is pregnant. However, even earlier on number of times, the victim had missed her periods, which would start coming

after a gap. Now, the victim has started mensurating. Upon this, she had taken the victim to Banga Diagnostics Centre, Sundernagar for a new

ultrasound. When she showed new ultrasound to the doctor, he did not find any pregnancy. The said opinion of the second doctor is re-produced in the

status report, which is extracted as follows:-

“As per request from Police, USG was done, form is suggestive of empty Uterus (No sonographically detectable abnormalities)â€​

After that, on 28.9.2020, the victim while recording her statement in the Court mentioned that nothing has happened with her. After that, she also

refused to undergo medical check up.

On 12.11.2020, the investigator produced both the USG reports (Ultrasound reports) before the M.O. and upon which, the concerned M.O. opined

as follows:-

“As per USG on dated 23.10.2020, no sign of pregnancy/abortion seen over USG. Mild variation can be seen from any USG follow with in 2

month.â€​

Interestingly, there is no reference to the USG report of 22nd October, 2020.

The investigation reveals that at the earliest stage, when the Medical Officer had examined the victim, then he had noticed a foetus of 18 weeks

and 3 days. However, the Medical Officer recommended second opinion from a higher hospital. After that, the mother of the victim took her to a

private clinic, where doctor took her ultrasound from this clinic. After that, she showed such ultrasound report to the another doctor at Civil Hospital,

Sundernagar, who opined that the victim is not pregnant.

However, the doctor could not medically examine the victim, because she refused to do so. It is somewhat shady.

Given above, it would be extremely unsafe to release the petitioner on bail until the investigation is complete or the petitioner is entitled to default

bail under Section 167(2), Cr.PC.

Resultantly, the petition is dismissed and liberty is given to the petitioner to file a fresh petition in this Court (High Court of Himachal Pradesh)

after filing of the police report under Section 173(2), Cr.PC. In case the SHO fails to file police report under Section 173(2), Cr.PC, then it shall be

open for the petitioner to file a petition for default bail exercising his right under Section 167(2), Cr.PC.

Consequently, the petition is dismissed. All pending applications, if any, stand closed.