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Date Of Decision: January 19 vs State Of H.P on 19 January, 2018

HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

.
Cr.MP(M) Nos.32/2018 33/2018

Date of decision: January 19, 2018
Cr.MP(M) No.32/2018
Ram Pal …..Petitioner

Versus

State of H.P. ….Respondent

Cr.MP(M) No.33/2018
Vijay Kumar …..Petitioner
Versus

State of H.P.
r ….Respondent

Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1 No
For the petitioners :Mr. Sanjeev K. Suri, Advocate

For the respondent :Mr. Rajat Chauhan, Law Officer

Sandeep Sharma, J. (Oral)

Both the bail petitioners have approached this Court, by way of

instant bail petitions filed under Section 438 Cr.PC, praying therein for

grant of anticipatory bail in case FIR No.3/2018 dated 03.01.2018

registered at Police Station Amb, Distt. Una (H.P.), under Sections 376,

498A, 506 IPC.

2. Sequel to order dated 15.01.2018, whereby the bail petitioners

were ordered to be enlarged on interim bail, HC Sunil Kumar, Women

1
Whether the reporters of Local Papers may be allowed to see the judgment?

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2

Police Station, Una, has come present alongwith the record. Mr. Rajat

.

Chauhan, learned Law Officer has also filed status report prepared on the

basis of investigation carried out by the Investigating Agency. Records

perused and returned.

3. Records/status report reveals that the FIR mentioned hereinabove

came to be registered against the bail petitioners at the behest of

complainant/prosecutrix, namely, Renu Bala, who on 02.01.2018 in a

letter addressed to Dy.SP, Amb, alleged that the bail petitioners

threatened her to kill and forcibly developed physical relations with her.

Records/status report further reveals that the marriage of complainant/

prosecutrix was solemnized in the year 2003 as per Hindu customs and

she has one son who was born in the year 2004. Since relations of

complainant/prosecutrix were not cordial with her husband, namely, Ajay

Kumar, she after five years of her marriage left her matrimonial house and

started living at her paternal house. As per the compliant submitted by the

complainant/prosecutrix, ten years back the bail petitioner, namely, Vijay

Kumar came to her in her paternal house and extended threats. The bail

petitioner asked the complainant/prosecutrix to return `4.00 lacs spent by

him in her marriage. Allegedly the above named bail petitioner brought

the complainant/prosecutrix back to her matrimonial house but after some

time, both the bail petitioners compelled her to solemnize marriage with

bail petitioner Ram Pal. Allegedly on the pretext of marriage, bail

petitioner Ram Pal repeatedly sexually assaulted the complainant/

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prosecutrix. The complainant/prosecutrix lodged complaint at Police

.

Station, Amb, but the same came to be compromised on 26.12.2017,

wherein allegedly the bail petitioner Ram Pal agreed to marry with the

sister of complainant/prosecutrix. The complainant/ prosecutrix alleged

that since she is an illiterate lady, she did not know that what has been

written in compromise. Now, since the bail petitioner Ram Pal has refused

to marry with the sister of complainant/prosecutrix, she has lodged

present complaint seeking therein action against the bail petitioners in

accordance with law. In the aforesaid background, case under Sections

376, 498-A 506 IPC has been registered against the bail petitioners.

4. Mr. Sanjeev Kumar Suri, learned counsel representing the bail

petitioners, while referring to the record/status report vehemently argued

that no case, if any, is made out against the bail petitioners under

Sections 376, 498-A 506 IPC, because nothing has come in investigation

against the bail petitioners suggestive of the fact that they forcibly and

against the wishes of complainant/prosecutrix sexually assaulted her

repeatedly as alleged by her. Mr. Suri further contended that if the report

submitted by the complainant/prosecutrix is read carefully, it clearly

suggests that the incident, if any, pertains to ten years back and there is

nothing on record that during this period of ten years, the complaint was

ever lodged by the complainant/prosecutrix either before the Gram

Panchayat, or before the police and, as such, the bail petitioners are

deserved to be enlarged on bail. Mr. Suri further contended that it clearly

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emerges from the status report that the complainant/prosecutrix has

.

refused to undergo medical examination and, as such, there is no force in

the allegations levelled by the complainant/prosecutrix. Mr. Suri further

contended that in terms of order dated 15.01.2018, the bail petitioners

have already joined the investigation and nothing is required to be

recovered from them and, as such, they being local residents of the area

deserve to be enlarged on bail.

5. Mr. Rajat Chauhan, learned Law Officer while opposing the

prayer of bail having been made on behalf of bail petitioners contended

that there is ample evidence available on record suggestive of the fact

that the bail petitioners taking undue advantage of a poor plight of

complainant/prosecutrix not only threatened her but repeatedly sexually

assaulted her. Mr. Chauhan further contended that true it is that the

complainant has refused to undergo medical examination but that cannot

be a ground to enlarge the bail petitioners on bail especially when there is

overwhelming evidence available on record that for a considerable time

both the bail petitioners, who happened to be son and father, tortured,

harassed and sexually assaulted the complainant/prosecutrix. Mr.

Chauhan fairly acknowledged that the bail petitioners have joined the

investigation and at this stage nothing is required to be recovered from

them and investigation is almost complete save and except certain

statements of neighbourers are yet to be recorded.

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6. I have heard learned counsel for the parties and gone through

.

the record carefully.

7. Perusal of the record/status report clearly suggests that the

incident as reported by the complainant/prosecutrix pertains to the year

2007. As per the complainant, ten years back, bail petitioner, namely,

Vijay Kumar approached her at her matrimonial house and asked her to

return `4.00 lacs spent by him on her marriage. She also stated that

subsequently she again returned to her matrimonial house at Nehri

Nauranga on the asking of bail petitioner Ram Pal, who on the pretext of

marriage repeatedly sexually assaulted her.

8. After having perused the material available on record, this Court

finds considerable force in the arguments of Mr. Sanjeev Kumar Suri that

there is nothing on record suggestive of the fact that during above said

period, the complaint, if any, was ever lodged by the complainant/

proseucutrix against the bail petitioners, rather the conduct of the

complainant suggests that she had prior acquaintance with the bail

petitioners and she had been meeting them frequently. Otherwise also

latest report submitted by the complainant to the police suggests that

since the bail petitioner Ram Pal refused to marry with her younger sister,

she sought action against them allegedly for committing offences under

Sections 376, 498A 506 IPC. Though aforesaid aspects of the matter

are to be considered and decided by the Court below but careful perusal

of the material adduced on record, nowhere suggests that the bail

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petitioners are involved in the crime alleged to have been committed by

.

them under Sections 376, 498A 506 IPC, as such, they cannot be

allowed to incarcerate in jail for indefinite period during the trial. Also, this

Court cannot loose sight of the fact that the prosecutrix has refused to

undergo the medical treatment. Otherwise also, the bail petitioners have

joined the investigation, and nothing is required to be recovered from

them. Mr. Sanjeev Kumar Suri, learned counsel representing the bail

petitioners undertakes that the bail petitioners shall make them available

for investigation as and when required by the Investigating Agency.

9. 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 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 them.

10. 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:

(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;

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(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;

(vii) reasonable apprehension of the witnesses being

influenced; and

(viii) danger, of course, of justice being thwarted by grant of
bail.

11. In view of above, order dated 15.01.2018 is made absolute,

subject to following conditions:

(a) Petitioners 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) Petitioners shall not tamper with the prosecution evidence nor

hamper the investigation of the case in any manner whatsoever;

(c) Petitioners 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) Petitioners shall not leave the territory of India without the
prior permission of the Court.

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12. It is clarified that if the petitioners misuse the liberty or violate

.

any of the conditions imposed upon them, the investigating agency shall

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

13. 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 these applications alone.

14. The petitions stand accordingly disposed of.

Copy dasti.

January 19, 2018 (Sandeep Sharma),
(rana) Vacation Judge.

22/01/2018 22:57:30 :::HCHP

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