Yaman Verma And Anr vs State Of Himachal Pradesh on 21 November, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP( M) No. 1397 of 2017
Decided on: 21.11.2017

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_

Yaman Verma and Anr. ……Petitioners
Versus

State of Himachal Pradesh …..Respondent

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Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the petitioners: Mr. Chandranarayana Singh,
r Advocate.

For the respondent: Mr. M.L. Chauhan and Mr. P.M.
Negi, Additional Advocate Generals.

ASI Santhosh Raj, Police Station
Dhalli, District Shimla, HP., present
with record.

_
Sandeep Sharma, Judge (oral):

By way of instant bail petition filed under Section 439

Code of Criminal Procedure, a prayer has been made for grant of bail in

case FIR No. 164/17 dated 7.11.2017, under Section 376 (D) IPC

registered at Police Station, Dhalli, District Shimla, Himachal Pradesh.

2. Sequel to order dated 14.11.2017, ASI Santosh Raj, has

come present in Court alongwith the record of the case. Mr. M.L.

Chauhan, learned Additional Advocate General, has also placed on

1
Whether the reporters of the local papers may be allowed to see the judgment?

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record status report prepared on the basis of the investigation carried out

by the Investigating Agency. Record perused and returned.

.

3. Facts, as emerge from the record as well as status report

reveals that FIR mentioned above came to be registered against the bail

petitioners at the behest of complainant namely Seema Devi alias Riya,

who alleged that on 6th November, 2017, she went with bail petitioner

namely Lokesh, who works in a Gymnasium, in his car for a ride. As

per complainant, above named bail petitioner later on disclosed her that

his another friend namely Yaman is also with him and he shall be joined

by another friend of him after some time. Subsequently, complainant

along with bail petitioner namely Lokesh went to place called

“Bhattakufar” to bring above named friend of bail petitioner. Since,

friend of bail petitioner namely Yaman had not come, complainant also

insisted that she needs to go back to her room. Complainant, who was

thirsty, was provided juice by bail petitioner but complainant after

having consumed the same felt sleepy and as such, she doesn’t know

what happened thereafter. Complainant further alleged that when she

became conscious, she found herself in a room, where she was made to

consume liquor by above named bail petitioners and thereafter, bail

petitioners forcibly sexually assaulted her against her wishes.

Complainant was subsequently rescued by the persons residing in a

room next to the room where she was allegedly rapped by the bail

petitioners.

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4. Mr. Chandranarayana Singh, learned counsel representing

the bail petitioners, while referring to the record/status report, contended

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that no case is made out in as much as under Section 376(D) against the

bail petitioners because there is no specific allegation, if any, of sexual

assault by bail petitioners. While referring to the status report, Mr.

Chandranarayana Singh, strenuously argued that it has specifically come

in the record that complainant who is a married woman, refused to

undergo medical examination and as such, adverse inference is ought to

be drawn against her. Mr. Chandranarayana Singh, further contended

that bail petitioners are in custody since 7th November, 2017 for no fault

of them because bare conduct of complainant ultimately suggests that

she joined the company of bail petitioners of her own volition and at no

point of time, she was forced by bail petitioners to accompany them.

Learned counsel further contended that both the bail petitioners are local

residents of the area and they shall be always available for investigation

as well as trial and there is no likelihood of them fleeing from justice

and as such, they are entitled to be released on bail.

5. Mr. M.L. Chauhan, learned Additional Advocate General,

while opposing the aforesaid prayer having been made by the learned

counsel, representing the bail petitioners, fairly conceded that

investigation in this case is complete and at this stage, nothing is

required to be recovered from the bail petitioners who are in custody

since 7th November, 2017. Though, Mr. Chauhan, forcefully contended

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that keeping in view the gravity of the offence allegedly committed by

the bail petitioners, they are not entitled to bail but Mr. Chauhan, was

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unable to refute that prosecutrix refused to undergo medical examination

after alleged incident. Though, the aforesaid aspect of the matter is to be

considered and decided by the trial court on the basis of the evidence, if

any, adduced on record by the prosecution, but this Court after having

carefully perused the record/status report, sees no reason to keep the bail

petitioner in custody, who are already in custody for last 15 days.

There is nothing on record from where it can be inferred that in the

event of bail petitioners being enlarged on bail, they shall not make

themselves available for investigation and trial and they shall temper

with the evidence.

6. Otherwise also, normal rule is of bail and not jail. Apart from

above, Court has to keep in mind nature of accusations, nature of

evidence in support thereof, severity of the punishment which

conviction will entail, character of the accused, circumstances which are

peculiar to the accused involved in that crime. Petitioners are the local

residents of the place mentioned in the application and they shall remain

available to face the trial and to undergo imprisonment, if any, imposed

upon him.

7. The Apex Court in Prasanta Kumar Sarkar versus Ashis

Chatterjee and another (2010) 14 SCC 496, has laid down the

following principles to be kept in mind, while deciding petition for bail:

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(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

.

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on
bail;

(v) character, behaviour, means, position and standing of the
accused;

(vi) likelihood of the offence being repeated;

(viii) reasonable apprehension of the witnesses being
influenced; and

(ix) danger, of course, of justice being thwarted by grant of

bail.

8. In view of the aforesaid discussion, petitioners have

carved out a case for grant of bail. Accordingly, the petition is allowed

and the petitioners are ordered to be enlarged on bail in aforesaid FIR,

subject to furnishing personal bonds in the sum of Rs.25,000/- with one

local surety, each in the like amount to the satisfaction of learned

Judicial Magistrate concerned, with following conditions:

(a) They shall make themselves available for the purpose
of interrogation, if so required and regularly attend the

trial Court on each and every date of hearing and if
prevented by any reason to do so, seek exemption from
appearance by filing appropriate application;

(b) They shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any manner
whatsoever;

(c) They shall not make any inducement, threat or
promises to any person acquainted with the facts of the
case so as to dissuade him/her from disclosing such
facts to the Court or the Police Officer; and

(d) They shall not leave the territory of India without the
prior permission of the Court.

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9. It is clarified that if the petitioners misuse the liberty or

violate any of the conditions imposed upon them, the investigating

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agency shall be free to move this Court for cancellation of the bail.

10. Any observations made hereinabove shall not be construed

to be a reflection on the merits of the case and shall remain confined to

the disposal of this application alone.

The petition stands accordingly disposed of.

Copy dasti.

(Sandeep Sharma)

Judge.

21st November, 2017
(reena)

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