Incarceration of the accused will lead to miscarriage of justice if the facts of case are strange and the evidence is insufficient: High Court of Himachal Pradesh

When the facts of the case which is of utmost importance are extremely contradictory and keep changing in every statement, it is unfair for the accused to be imprisoned without any conducive evidence. Such a use of law would lead to miscarriage of justice and thus bail must be granted. This was decreed by The Hon’ble Mr. Justice Anoop Chitkara in the case of Amit Chaudhary Vs. State of Himachal Pradesh [Cr.MP(M) No. 1039 of 2021] which was decided on the 09th of July 2021 in the High Court of Himachal Pradesh at Shimla.

The brief facts of the case are, on 28.12.2020, two minor girls named ‘S’ (14 years) and ‘Y’ (16 years) escaped from the child care institute and took a bus and went to Bilaspur. On the bus, they met the present bail petitioner. It was claimed that the three of them spent the night together and ‘S’ was raped by him. They came back to Himachal Pradesh on 1.1.2021. An FIR was filed on the day the girls went missing. On 2.1.2021, the I.O. took the victims for their medical examination at IGMC, Shimla, where the doctors conducted their medico-legal examination. The DNA profile obtained from the underwear of ‘S’, three DNA profiles were identified, and one such DNA profile matched with the DNA profile obtained from the blood sample on FTA card of Amit Kumar. The present bail application is filed for release of the accused on regular bail.

The counsel for the petitioner submitted that the victim had appeared as a witness in a case and had admitted she was above the age of 18 years. In addition to this, the Counsel states that, with conceding, given the fact that the victim had voluntarily accompanied the petitioner in a hotel, and she did not utter a single word of forceful action, but just stated that in the hotel, the petitioner had established sexual relations with her, it points towards consent. He also submits that the incarceration before the proof of guilt would cause grave injustice to the petitioner and family. The counsel for the state however states that the girl was a minor and a victim of Gang rape and if the court is awarding the petitioner with bail, extremely stringent and restrictive conditions must be imposed.

The court heard the submissions of both the parties and observed that, she had admitted to be above the age of 18 in a cross examination by the defence in another trial where she testified as the witness. It was also mentioned that the mother of the victim had admitted the age of her daughter to be 20 on 12.1.2021. A perusal of the bail petition reveals that the petitioner did not file the copy of statements of the victims, recorded under Sections 161 and 164 CrPC. Without reading the statements of both the victims ‘S’ and ‘Y,’ it was not proper to assume that the petitioner had coitus with the victim ‘S’ and not with the victim ‘Y,’ against whom there are no allegations of false implications in the past. In a statement recorded on 4.1.2021, it was observed that the victim had mentioned that she did not want to continue with the case.

The court said that, “In the entirety of very strange facts of this case, the possibility that the sexual act of the petitioner with victim “S” would not fall as statutory rape and it might result into miscarriage of justice if he is allowed to incarcerate on such kind of evidence. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.”

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