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Cr.Mp(M) No. 903 Of 2018 vs State Of Himachal Pradesh on 6 August, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) Nos.903 and 904 of 2018
Decided on: 6.8.2018

.

1. Cr.MP(M) No. 903 of 2018
Jiwan Lal @ Charlie ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

2. Cr.MP(M) No. 904 of 2018
Dabe Ram ………..Petitioner
Versus

State of Himachal Pradesh ……….Respondent

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

For the Respondent : Mr. S.C. Sharma, Additional Advocate
General and Mr. Amit K. Dhumal,
Deputy Advocate General.

Sandeep Sharma, Judge (oral):

By way of above captioned bail petitions filed under Section

439 of Cr.PC, prayer has been made on behalf of the bail petitioners for

grant of regular bail in connection with FIR No. 48/17 dated 2.6.2017,

under Sections 342, 376, 34 of IPC and Section 3 (1) W(1) of SC/ST Act,

registered at PS Aut, District Mandi, HP.

2. Sequel to order dated 23.7.2018, passed by this Court, ASI

Sham Lal, PS Aut, District Mandi, HP, has come present in Court alongwith

record of the case. Record perused and returned. Mr. S.C. Sharma,

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

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learned Additional Advocate General, has also placed on record status

report prepared on the basis of the investigation carried out by the

.

investigating agency.

3. Before adverting to the factual matrix of the case, it may be

stated that prior to filing of the instant petitions, above named petitioners

had also filed similar bail petitions bearing Cr.MP Nos. 307 and 308 of 2018,

which came to be dismissed as withdrawn vide order dated 16.5.2018.

4. Close scrutiny of the record/status report suggests that on

2.6.2017, complainant namely Dile Ram, who happened to be uncle of

the victim/prosecutrix, reported to the police that bail petitioners sexually

assaulted the prosecutrix, who is partially blind, against her wishes.

Complainant further disclosed to the police that person namely Kirna,

who had allegedly taken the prosecutrix to her residence after the

alleged incident subsequently disclosed to his wife that bail petitioners

sexually assaulted the prosecutrix against her wishes in a house adjacent

to the house of the complainant. On the basis of aforesaid report, lodged

by the complainant as well as statement given by the victim-prosecutrix,

aforesaid FIR came to be lodged against the present petitioners, who are

behind bars since 3.6.2017.

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

petitioners, while making this Court to peruse record/status report

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vehemently argued that no case, if any, is made out against the

petitioners under Section 342, 376 and 34 of IPC because medical

.

evidence adduced on record, nowhere suggests that victim-prosecutrix

was ever sexually assaulted by the bail petitioners and as such, they

deserve to be enlarged on bail. Mr. Chandel, while referring to the

statement of victim-prosecutrix recorded under Section 164 Cr.PC., further

submitted that it clearly suggests that prosecutrix had prior acquaintance

with one of the bail petitioner namely Jiwan Lal, and she of her own

volition joined their company. Mr. Chandel further submitted that though

petitioners deny the allegations, if any, of sexual assault committed upon

the prosecutrix, but even if her statement recorded under Section 164

Cr.PC is read in its entirety, it clearly suggests that at no point of time,

petitioners forcibly took prosecutrix to the house where she was allegedly

raped, rather she of her own joined the company of the petitioners.

Lastly, Mr. Chandel, contended that bail petitioners are behind the bars

for more than 1 year for no fault of them and as such, they deserve to be

enlarged on bail and there is no likelihood of their fleeing from justice as

they are local residents of the area.

6. Mr. S.C. Sharma, learned Additional Advocate General,

while opposing the aforesaid prayer having been made on behalf of the

petitioners, strenuously argued that keeping in view the gravity of offence

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allegedly committed by the bail petitioners, they do not deserve to be

shown any leniency, rather needs to be dealt with severely. Learned

.

Additional Advocate General, while refuting the aforesaid contention of

the petitioners that nothing has come in the medical evidence forcefully

contended that in the report of RFSL, it has been specifically opined that

possibility of sexual assault cannot be ruled out. Mr. Sharma further

argued that it is not in dispute that victim/prosecutrix is partially blind and

as such, possibility of taking undue advantage of her blindness by the

petitioners while committing offence punishable under Section 376 IPC,

cannot be ruled out. Lastly Mr. Sharma, contended that matter is already

sub-judice before the court below and is fixed for framing of charge and

as such, present petition deserves to be dismissed.

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

through the record of the case.

8. It is not in dispute that victim/prosecutrix is partially blind but

if her statement recorded under Section 164 Cr.PC, is read in its entirety, it

can be easily inferred that she is/was capable of understanding, rather

she could see and recognize people also. She in her statement recorded

under Section 164 Cr.PC stated that she has a low vision but since she

knew the bail petitioner Jiwan Lal, she could identify him. Statement of

her recorded under Section 164 Cr.PC, further suggests that she joined the

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company of the bail petitioners voluntarily and even accompanied them

to room, wherein she was allegedly raped. She has further stated that bail

.

petitioners also offered her Rs.500/-, but she stated that somebody may

see her alongwith them. Apart from above, perusal of medical report as

well as RFSL report nowhere suggests commissioning of offence, if any,

under Section 376 of IPC. Medical officer has categorically opined that

no marks of resistance were seen on the person of the victim-prosecutrix.

Most importantly, doctor in his opinion has observed that “as per history

and examination, last time of sexual intercourse could not be

interpreted.”

9. Having carefully perused material on record, especially, the

statement of prosecutrix recorded under Section 164 Cr.PC, this Court is

not persuaded to agree with learned Additional Advocate General that

bail petitioners taking undue advantage of her partial blindness, sexually

assaulted her against her wishes, rather there appears to be prior

acquaintance of the petitioners with the victim-prosecutrix, who of her

own volition joined their company. Though, aforesaid aspects of the

matter are to be considered and decided by the court below on the

basis of evidence adduced on record by the prosecution, but at this

stage, this Court having perused material available on record sees no

reason to keep the bail petitioners behind the bar for an indefinite period,

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who have already suffered for more than one year, especially when guilt,

if any, of them is yet to be proved in accordance with law. Repeatedly, it

.

has been held by the Hon’ble Apex Court as well as this Court that

freedom of an individual is utmost importance and cannot be curtailed

for an indefinite period.

10. Needless to say, guilt, if any, of the bail petitioners 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. 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 investigating officer or is hiding

due to some genuine and expressed fear of being victimized, it would be

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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
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

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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.

11. 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.

12. 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
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

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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.”

13. 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
period would amount to violation of Article 21 of the Constitution
was highlighted.”

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14. 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.

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

by the Hon’ble Apex Court, petitioners have carved out a case for grant

of bail, accordingly, the petitions are allowed and the petitioners are

ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing

personal bond in the sum of Rs. 1,00,000/- each with one local surety each

in the like amount to the satisfaction of concerned Chief Judicial

Magistrate/trial Court, 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;

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(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.

16. It is clarified that if any of 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.

17. 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 petitions stand accordingly disposed of.

Copy dasti.

6th August, 2018 (Sandeep Sharma),

manjit Judge

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