JAGMOHAN BANSAL, J.
1. The appellant, through instant appeal is seeking setting aside of order dated 06.08.2022 whereby Additional Sessions Judge, Fast Track Special Court, Hisar has dismissed regular bail application of the appellant in FIR No.542 dated 30.05.2022 under Section 376(2)(n) of Indian Penal Code, 1860 (for short ‘IPC’), Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short ‘SC/ST Act’) registered at Police Station HTM Hisar, District Hisar.
2. The case of the prosecution is that on 30.05.2022, prosecutrix lodged a complaint alleging that in the year 2013 she and accused/appellant became friends. On 28.10.2013, the appellant, on the pretext of marriage committed rape upon her. He continued to commit sexual intercourse with her for next 5-6 years. She got pregnant and appellant gave her pills to abort the pregnancy. The appellant solemnized marriage with another girl, however, on 11.04.2022, he came to Delhi and solemnized marriage with her on 14.04.2022. They started living ina rented accommodation. After some time, she received a phone call from Hisar Police, which confirmed that parents of appellant have lodged his missing report. They appeared before police at Hisar and went back to Delhi.
On the basis of complaint of the prosecutrix, the appellant was arrested on 27.06.2022.
3. Learned counsel for the appellant, inter alia contends that prosecutrix stands examined and she has turned hostile. She has not supported case of the prosecution. The appellant is in custody since 27.06.2022 and he is not involved in any other offence. The appellant has been wrongly implicated in the commission of alleged offence. The appellant is permanent resident of District Hisar. The appellant has deep roots in the society. There is no possibility of flee from justice.
4. Reply by way of affidavit dated 21.03.2023 filed by Kaptan Singh, H.P.S, Deputy Superintendent of Police, Law & Order, District Hisar filed on behalf of respondent-State is taken on record. Registry is directed to tag at appropriate place.
5. Learned State counsel submits that police report has already been filed and charges stand framed. The appellant is in custody since 27.06.2022 and he is not involved in any other offence. Out of 17 witnesses, only prosecutrix has been examined and she has turned hostile.
6. In the case in hand, the prosecutrix has miserably demolished case of the prosecution. There are 17 witnesses and till date only prosecutrix has been examined who has turned hostile. The appellant is in custody since 27.06.2022 and he is not involved in any other offence. The Trial Court yet has to return definite findings on the disputed issues. Since only one witness i.e. the prosecutrix has been examined, thus, there is abysmally low possibility of conclusion of trial in near future. As prosecution has right to arrest, investigate the matter and restrain an accused from manipulating or winning over witnesses, similarly accused in view of Article 21 of the Constitution of India has right to defend himself and put forth his stand which cannot be possible while in custody. The prosecution has not led any convincing/plausible documentary or oral evidence indicating possibility of appellant being flee from justice or tampering the evidences or winning over/threatening the witnesses.
7. In view of afore-stated facts and circumstances, this Court is of the considered opinion that present appeal deserves to be allowed and accordingly allowed. The appellant is ordered to be released on bail subject to conditions as may be imposed by Trial Court/Illaqa/Duty Magistrate concerned.
8. Nothing observed hereinabove shall be construed as expression of opinion of this Court on merits of the case and Trial Court shall proceed without being prejudiced by observations of this Court.
