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 offencesbut 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 ofthese basic principles appear to have been lost sight of with
the result that more and more persons are being incarceratedand 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 alarge 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 bestopportunity 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 judicialcustody 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 a01/11/2018 22:56:46 :::HCHP
10first-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 enormousovercrowding 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. The01/11/2018 22:56:46 :::HCHP
11Courts 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 custodypending 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 anymatter, 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 asubstantial 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 beconsidered 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 wasunderlined 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 beimproper 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 thatsince 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 indefinite01/11/2018 22:56:46 :::HCHP
12period 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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