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Ajay Kumar Alias Ajju vs State Of Himachal Pradesh on 31 October, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1347 of 2018
Decided on: 31.10.2018

.

Ajay Kumar alias Ajju ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner : Mr. N.S. Chandel, Advocate.

For the Respondent : Mr. S.C. Sharma and Mr. Sanjeev Sood,
Additional Advocate Generals.

Sandeep Sharma, Judge (oral):

Bail petitioner namely Ajay Kumar alias Ajju, who is behind

bars since 24.10.2017, has approached this Court in the instant

proceedings filed under Section 439 of Cr.PC, praying therein for grant of

regular bail in connection with FIR No. 116/17 dated 23.10.2017, under

Sections 376, 354- A and 109 of IPC, registered at PS Aut, District Mandi,

HP.

2. Sequel to order dated10.10.2018, passed by this Court, ASI

Joginder Singh, P.S. Aut, District Mandi, HP, has come present in Court

alongwith record of the case. Mr. Sanjeev Sood, learned Additional

Advocate General, has also placed on record status report prepared on

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

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the basis of the investigation carried out by the investigating agency.

Record perused and returned.

.

3. Close scrutiny of the record/status report reveals that on

23.10.2017, complainant/prosecutrix got her statement recorded with

police, alleging therein that bail petitioner, who is known to her since April,

2017, gave her a call on 19.10.2017 and insisted upon her to meet him.

Complainant informed him that since her mother is not at home, as she

has gone to meet her father at Shamji, she cannot come, but bail

petitioner insisted that in case, she does not come, he would come to her

residence. On 20.10.2017, complainant-prosecutrix leaving behind her

younger sister and brother, reached a place called Parjaul Dhar, where

allegedly, bail petitioner was waiting for her. At the aforesaid place i.e.

Parjaul Dhar, bail petitioner with other person namely Rajiv, was waiting for

her. Though complainant insisted that she needs to go back to her house,

but bail petitioner compelled her to accompany her to place called Bali

Chawki. After having reached Bali Chawki, complainant and bail

petitioner went to Ambika Guest house, where person namely Rajiv had

already hired a room and he was waiting for them. As per own version of

the complainant-prosecutrix, they all three sat together for 10-15 minutes,

whereafter Rajiv left the room. Allegedly, Rajiv and bail petitioner

consumed liquor, whereafter bail petitioner forcibly committed sexual

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intercourse with the complainant-prosecutrix. Though, person namely

Rajiv also insisted upon the complainant-prosecutrix to develop physical

.

relations with him, but she did not agree. As per the complainant she

remained throughout night with the bail petitioner and Rajiv in one room.

She alleged that she had slept with bail petitioner, who committed

forcible sexual intercourse against her wishes on two occasions and in the

early morning, person namely Ravi left her at a place called Parjaul Dhar.

She stated that in the way, Rajiv also insisted upon her to develop physical

relations, but she refused.

r Record further reveals that after having

reached Parjaul Dhar, she went to some temple, where some rituals were

being performed by the villagers and she also participated in the same,

but interestingly, from there, she never went to her home, rather she again

came back to Bali Chawki, and stayed in the same guest house, from

where she was allegedly recovered by her family members. On the basis

of aforesaid statement, formal FIR came to be registered against the bail

petitioner and person namely Rajiv under Section 375, 354-A and 109 IPC

at PS. Aut, District Mandi, and since then, bail petitioner is behind bars,

whereas co-accused namely Rajiv stands already enlarged on bail.

4. Mr. N.S. Chandel, learned counsel representing the bail

petitioner while inviting attention of this Court to the status report/record

vehemently argued that no case much less under Section 376 IPC is made

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out against the bail petitioner. He contended that statement of

complainant prosecutrix made under Section 164 Cr.PC., itself suggests

.

that she of her own volition had joined the company of the bail petitioner

and at no point of time, she was subjected to forcible sexual intercourse.

Mr. Chandel, further contended that bare conduct of prosecutrix, who at

the time of alleged incident, was admittedly major, nowhere suggests

that bail petitioner taking undue advantage of her innocence committed

forcible sexual intercourse with her. Mr. Chandel, further contended that

it has specifically come in the evidence that complainant-prosecutrix

after having received telephonic call from the bail petitioner, of her own

volition, had joined his company and thereafter, remained throughout

night with the bail petitioner at Ambika Guest house at Bali Chawki. He

contended that in case, she had not joined the company of the bail

petitioner of her consent, she had sufficient time to raise hue and cry at

the guest house, but her own conduct suggests that she was consenting

party to the alleged incident and as such, bail petitioner deserves to be

enlarged on bail. While referring to the medical evidence adduced on

record, Mr. Chandel contended that there is definite medical evidence

available on record suggestive of the fact that complainant-prosecutrix

was not subjected to forcible sexual intercourse because there is no

finding of violence on her person. Lastly, Mr. Chandel, contended that

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investigation in the case is complete and challan stands filed in the

competent court of law and as such, bail petitioner, who has already

.

suffered for more than one year, deserves to be enlarged on bail during

the pendency of the trial.

5. Mr. Sanjeev Sood, learned Additional Advocate General,

while fairly acknowledging the factum with regard to filing of challan in

the competent court of law, contended that keeping in view the gravity

of the offence alleged to have been committed by the bail petitioner, he

does not deserve to be enlarged on bail, rather needs to be dealt with

severely. Mr. Sood further contended that medical evidence adduced

on record categorically suggests that complainant-prosecutrix was

subjected to sexual intercourse and as such, it cannot be said that there is

no medical evidence. He further contended that there is ample

evidence available on record that bail petitioner in connivance with co-

accused namey Rajiv, taking undue advantage of innocence of the

complainant-prosecutrix, who is s rustic villager firstly, made her to leave

her house and then, sexually assaulted her against her wishes and as such,

prayer made in the instant petition for grant of bail, deserves to be

rejected outrightly.

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

through the record of the case.

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7. Having heard the learned counsel for the parties and

perused material available on record, this Court finds that complainant-

.

prosecutrix had prior acquaintance with the bail petitioner namely Ajay,

who as per own version of complainant-prosecutrix, had been meeting

and contacting her over telephone since April 2017. As per own version

of complainant-prosecutrix on 20.10.2017, bail petitioner gave her a

phone call and insisted upon her to meet him at Parjaul Dhar. Though

complainant-prosecutrix has stated that she refused to come, but fact

remains that she of her own volition joined the company of the bail

petitioner, who admittedly was waiting for her at a place called Parjaul

Dhar, which was at a distance of approximately 8-10 KMs from the house

of the complainant-prosecutrix. Similarly, there is no explanation available

on record that if complainant-prosecutrix, who was admittedly major at

the time of the alleged incident, was not willing to join the company of

the petitioner, why she kept mum throughout while her stay at Ambika

Guest house at Bali Chowki, rather her own statement reveals that she

enjoyed the meal with bail petitioner and co-accused. She herself stated

that both, accused and Rajiv, consumed liquor and thereafter, they slept

in one room at Ambika Guest House. If at all, she was not comfortable

with the company of the bail petitioner and co-accused Rajiv, she had

ample time to report the matter to the management of the Ambika Guest

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house, but there is no such evidence collected on record by the

Investigating Agency, which conduct of the complainant-prosecutrix

.

certainly compels this Court to agree with the contention of Mr. Chandel,

that complainant-prosecutrix was a consenting party. There is another

aspect of the matter i.e. when prosecutrix could resist demand of co-

accused Rajiv as stated by her in her statement, then why not of bail

petitioner.

8. Leaving everything aside, it is not understood that once

after leaving the guest house, prosecutrix had got an opportunity to

report the matter to the people present at Temple at Parjaul Dhar, where

she also participated, why she again returned back to Ambika Guest

house. Though, aforesaid aspects of the matter are to be considered and

decided by the court below on the basis of totality of evidence collected

on record by the prosecution, but this Court having perused material

available on record at this stage, sees no reason to let the bail petitioner

incarcerate in jail for an indefinite period, especially, when he has already

suffered for more than a year.

9. No doubt medical evidence adduced on record indicates

that possibility of recent sexual intercourse cannot be ruled out, but this

Court cannot ignore the fact that medical officer has categorically

opined that there is no sign of violence. Otherwise also, prosecution has

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not placed on record material, if any, suggestive of the fact that in the

event of the petitioner’s being enlarged on bail, he would flee from justice

.

and as such, this Court is inclined to accept the prayer made for grant of

bail at this stage.

10. Repeatedly, it has been held by the Hon’ble Apex Court as

well as this Court that till the time, guilt of individual is not proved in

accordance with law, he/she is deemed to be innocent and in the case

at hand also, guilt, if any, of the bail petitioner is yet to be proved in

accordance with law by the prosecution by leading cogent and

convincing evidence. It is well settled that till the time a person is not

found guilty, one is deemed to be innocent.

11. Recently, the Hon’ble Apex Court in Criminal Appeal No.

227/2018, Dataram Singh vs. State of Uttar Pradesh Anr., decided on

6.2.2018, has categorically held that a fundamental postulate of criminal

jurisprudence is the presumption of innocence, meaning thereby that a

person is believed to be innocent until found guilty. Hon’ble Apex Court

further held that while considering prayer for grant of bail, it is important to

ascertain whether the accused was participating in the investigations to

the satisfaction of the investigating officer and was not absconding or not

appearing when required by the investigating officer. Hon’ble Apex

Court has further held that if an accused is not hiding from the

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investigating officer or is hiding due to some genuine and expressed fear

of being victimized, it would be a factor that a judge would need to

.

consider in an appropriate case. The relevant paras of the aforesaid

judgment are reproduced as under:

“2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences

but that is another matter and does not detract from the
fundamental postulate in respect of other offences. Yet
another important facet of our criminal jurisprudence is that
the grant of bail is the general rule and putting a person in jail
or in a prison or in a correction home (whichever expression
one may wish to use) is an exception. Unfortunately, some of

these basic principles appear to have been lost sight of with
the result that more and more persons are being incarcerated

and for longer periods. This does not do any good to our
criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely
the discretion of the judge considering a case but even so, the
exercise of judicial discretion has been circumscribed by a

large number of decisions rendered by this Court and by
every High Court in the country. Yet, occasionally there is a
necessity to introspect whether denying bail to an accused
person is the right thing to do on the facts and in the
circumstances of a case.

4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best

opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it necessary
to arrest an accused person during investigations, a strong
case should be made out for placing that person in judicial

custody after a charge sheet is filed. Similarly, it is important to
ascertain whether the accused was participating in the
investigations to the satisfaction of the investigating officer and
was not absconding or not appearing when required by the
investigating officer. Surely, if an accused is not hiding from
the investigating officer or is hiding due to some genuine and
expressed fear of being victimised, it would be a factor that a
judge would need to consider in an appropriate case. It is also
necessary for the judge to consider whether the accused is a

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first-time offender or has been accused of other offences and
if so, the nature of such offences and his or her general
conduct. The poverty or the deemed indigent status of an
accused is also an extremely important factor and even

.

Parliament has taken notice of it by incorporating an

Explanation to Section 436 of the Code of Criminal Procedure,
1973. An equally soft approach to incarceration has been
taken by Parliament by inserting Section 436A in the Code of
Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be

adopted by a judge, while dealing with an application for
remanding a suspect or an accused person to police custody
or judicial custody. There are several reasons for this including
maintaining the dignity of an accused person, howsoever
poor that person might be, the requirements of Article 21 of
the Constitution and the fact that there is enormous

overcrowding in prisons, leading to social and other problems
as noticed by this Court in In Re-Inhuman Conditions in 1382
Prisons.

12. Needless to say object of the bail is to secure the

attendance of the accused in the trial and the proper test to be applied

in the solution of the question whether bail should be granted or refused is

whether it is probable that the party will appear to take his trial.

Otherwise, bail is not to be withheld as a punishment. Otherwise also,

normal rule is of bail and not jail. 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.

13. The Hon’ble Apex Court in Sanjay Chandra versus Central

Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-

” The object of bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail. The object of bail
is neither punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it can be required to ensure that
an accused person will stand his trial when called upon. The

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Courts owe more than verbal respect to the principle that
punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.
Detention in custody pending completion of trial could be a

.

cause of great hardship. From time to time, necessity demands
that some unconvicted persons should be held in custody

pending trial to secure their attendance at the trial but in such
cases, “necessity” is the operative test. In India , it would be quite
contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any

matter, upon which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if left at liberty, save
in the most extraordinary circumstances. Apart from the question
of prevention being the object of refusal of bail, one must not lose
sight of the fact that any imprisonment before conviction has a

substantial punitive content and it would be improper for any
court to refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to refuse
bail to an unconvicted person for the propose of giving him a
taste of imprisonment as a lesson.”

14. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC

218, The Hon’ble Apex Court has held as under:-

” This Court in Sanjay Chandra v. CBI, also involving an economic
offence of formidable magnitude, while dealing with the issue of
grant of bail, had observed that deprivation of liberty must be

considered a punishment unless it is required to ensure that an
accused person would stand his trial when called upon and that
the courts owe more than verbal respect to the principle that
punishment begins after conviction and that every man is
deemed to be innocent until duly tried and found guilty. It was

underlined that the object of bail is neither punitive or preventive.
This Court sounded a caveat that any imprisonment before
conviction has a substantial punitive content and it would be

improper for any court to refuse bail as a mark of disapproval of a
conduct whether an accused has been convicted for it or not or
to refuse bail to an unconvicted person for the purpose of giving
him to taste of imprisonment as a lesson. It was enunciated that

since the jurisdiction to grant bail to an accused pending trial or
in appeal against conviction is discretionary in nature, it has to be
exercised with care ad caution by balancing the valuable right of
liberty of an individual and the interest of the society in general. It
was elucidated that the seriousness of the charge, is no doubt
one of the relevant considerations while examining the
application of bail but it was not only the test or the factor and the
grant or denial of such privilege, is regulated to a large extent by
the facts and circumstances of each particular case. That
detention in custody of under trial prisoners for an indefinite

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period would amount to violation of Article 21 of the Constitution
was highlighted.”

15. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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;
(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)

r danger, of course, of justice being thwarted by grant of bail.

16. In view of the aforesaid discussion as well as law laid down

by the Hon’ble Apex Court, petitioner has carved out a case for grant of

bail, accordingly, the petition is allowed and the petitioner is ordered to

be enlarged on bail in aforesaid FIR, subject to his furnishing personal

bond in the sum of Rs. 1,00,000/- with one local surety in the like amount to

the satisfaction of concerned Chief Judicial Magistrate/trial Court, with

following conditions:

(a) He shall make himself 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) He shall not tamper with the prosecution evidence nor hamper
the investigation of the case in any manner whatsoever;

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(c) He 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) He shall not leave the territory of India without the prior

permission of the Court.

17. It is clarified that if the petitioner misuses the liberty or violate

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

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

18. 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.

31st October, 2018 (Sandeep Sharma),

manjit Judge

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