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Dipanshu Gagat vs State Of Himachal Pradesh R on 5 May, 2020

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Cr. MP(M) No. 558 of 2020 a/w

.

Cr.MP(M) No.567 of 2020

Date of Decision: 5.5.2020

1. Cr.MP(M) No.558 of 2020

Dipanshu Gagat …….. Petitioner

Versus
State of Himachal Pradesh r …..Respondent

2. Cr.MP(M) No.567 of 2020

Vijay Kumar …….. Petitioner

Versus

State of Himachal Pradesh …..Respondent.
_
Coram:

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

For the Petitioners: Mr. Sudhir Thakur, Senior Advocate
with Mr. Karun Negi, Advocate,

through video­conferencing.

For the Respondent: Mr. Sudhir Bhatnagar, Additional
Advocate General, through video­
conferencing.
_
Sandeep Sharma, Judge (oral):

By way of above captioned bail petitions, prayer

has been made on behalf of the bail petitioners namely,

Dipanshu Gagat and Vijay Kumar, who are behind the bars
1
Whether the reporters of the local papers may be allowed to see the judgment?

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2

since 20.3.2020, for grant of regular bail in case FIR

No.15/2020, dated 19.3.2020, under Sections 376, 376­D, 354,

.

511, 34 of IPC, Sections 4 12 of POCSO Act and Section

66(E) of IT Act, registered at Women Police Station,

Solan,District Solan, Himachal Pradesh.

2. Sequel to order dated 27.4.2020, respondent­State

has filed status report through e­mail ,which is taken on

record. Pursuant to order dated 27.4.2020 respondent­State

has also made available statement of victim/prosecutrix

recorded under Section 164 Cr.P.C., as well as MLC furnished

by the medical expert.

3. Perusal of status report made available to this

Court reveals that on 19.3.2020, victim/prosecutrix aged 17

years (name withheld), lodged a complaint at Women Police

Station, Solan in the presence of Chairperson, Child Welfare

Committee, Solan, District Solan, H.P., stating therein that

one and half year back she started going to Thodo ground,

Solan for sports activities alongwith her friends. She stated to

the police that during Shoolini fair, she came in the contact of

a person namely, Parveen, who subsequently introduced her to

his two other friends. She stated that since it transpired to

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3

her that Parveen takes drugs, she stopped talking to him, but

after 4­5 months somebody other than Parveen started

.

calling her from unknown number and in that way she came

in the contact of person namely, Sumit. She alleged that 10­

15 days thereafter Sumit called her at Thodo ground, but

when she reached Thodo ground, Sumit was not there. She

alleged that she made telephonic call to Sumit, but some other

person, whose voice was similar that of Sumit picked up the

call and asked her to come near the main gate. She further

alleged that when she sat in the car parked near the main gate

of Thodo ground, some other person was found to be sitting in

the car. She alleged that the person sitting in the car did not

allow her to get down from the car and insisted upon her to go

with some other boy, but she refused. She disclosed to the

police that name of the person sitting in the car was Dipanshu

(Jojo) i.e. petitioner No.1. She disclosed to the police that on

the persuasion of above named bail petitioner, she agreed to

meet person named by bail petitioner and as such, she

alongwith bail petitioner went towards the parking, where

person namely Madhur was waiting. She alleged that since

Madhur was known to her and she used to treat him like her

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4

Sir, Madhur left the spot, but bail petitioner Dipanshu

sexually assaulted her against her wishes in the car. She

.

further alleged that when she requested the bail petitioner

Dipanshu to let her go to her home, he called 2­3 boys

including other bail petitioner Vijay Kumar, who subsequently

made an attempt to outrage her modesty. She alleged that

while she was leaving the place, bail petitioner Vijay

Kumar(bail petitioner No.2) not only made her video but also

claimed before the people present there that this girl has been

caught red handed, while indulging in immoral activities. She

also disclosed to the police that while leaving the spot of

incident, she requested Jojo Bhai(Dipanshu) that she will not

disclose the incident of rape to anybody, but he should get

video deleted from the phone of bail petitioner Vijay Kumar.

She alleged that after the alleged incident, bail petitioner

circulated her telephone number to other persons, who started

troubling her by making unnecessary calls on her number. She

disclosed to the police that in December, 2019 she came in the

contact of a person namely, Prashant, who also sexually

assaulted her against her wishes and as such, appropriate

action, in accordance with law, be taken against all the

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5

accused person. In the aforesaid background, FIR detailed

hereinabvoe came to be lodged against the bail petitioners as

.

well as other accused named in the FIR and since 20.3.2020,

bail petitioners are behind the bars.

4. Mr. Sudhir Bhatnagar learned Additional Advocate

General while representing the respondent­State through

video conferencing, contends that though the investigation in

the case is complete and nothing remains to be recovered from

the bail petitioners, but keeping in view the gravity of offence

alleged to have been committed by them, they do not deserve

to be enlarged on bail at this stage. Learned Additional

Advocate General further contends that the material available

on record clearly reveals that the bail petitioners in

connivance with other accused not only sexually assaulted the

victim/prosecutrix against her wishes but also uploaded her

video on the Internet with a view to blackmail her. Mr.

Bhatnagar, further submits that though there is ample

evidence suggestive of the fact that the bail petitioner sexually

assaulted the victim/prosecutrix taking undue advantage of

her innocence and minority but otherwise also consent, if

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any, of victim/prosecutrix is immaterial on account of her

being minor at the time of commission of alleged offence.

.

5. Mr. Sudhir Thakur, learned Senior Advocate

representing the bail petitioners while refuting the aforesaid

submission made by learned Additional Advocate General

submits before this Court that there is no explanation

rendered on record qua the inordinate delay in lodging the

FIR. He submits that as per own statement of the

victim/prosecutrix, alleged offence punishable under Section

376 of IPC was committed by bail petitioner Dipanshu in the

year 2018, but there is no material suggestive of the fact that

the victim/prosecutrix lodged complaint, if any, to the police or

her parents in the year, 2018 and as such, her version as

recorded under Section 164 Cr.P.C as well as under Section

154 Cr.P.C cannot be taken as gospel truth at this stage.

Lastly, Mr. Thakur, contends that bare conduct of the

victim/prosecutrix clearly reveals that she had been in the

habit of making lot of friends and as such, it cannot be said

that she was incapable of understanding the consequence of

her being in the company of the bail petitioners. While

referring to the record, Mr. Thakur, contends that bare

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7

perusal of medical evidence adduced on record nowhere

suggests the commission of offence, if any, by the bail

.

petitioners under section 376 of IPC and as such they deserve

to be enlarged on bail, especially when nothing remains to be

recovered from them.

6. Having heard learned counsel representing the

parties and perused the material available on record,

especially statements of prosecutrix recorded under Sections

164 and 154 Cr.P.C., this Court finds that allegedly the

offence, if any, punishable under Section 376 IPC by bail

petitioner Dipanshu Gagat was committed somewhere in the

year 2018, but there is no plausible explanation rendered on

record by the victim/prosecutrix that why she kept mum for

almost two years before lodging of the FIR at hand. Otherwise

also, if the statements of the victim/prosecutrix under Sections

164 and 154 Cr.P.C are read in conjunction, there are material

contradictions and variations. As per own statement of the

prosecutrix, on the date of alleged incident she had gone to

Thodo ground after having received telephonic call from a

person namely Sumit, but it is not understood that how she

came into contact with the bail petitioner, Dipanshu Gagat.

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She in her statements made to the police and Judicial

Magistrate claimed that on the insistence of bail petitioner

.

Dipanshu Gagat, she had gone to the main gate to meet the

person namely, Madhur with whom she had prior

acquaintance, but it is not understood that why at that stage

she failed to disclose to Madhur, with regard to indecent

behaviour,if any, of bail petitioner Dipanshu Gagat. Moreover,

as per own statement of the victim/prosecutrix many people

were playing in the Thodo ground at the time of alleged

incident, but victim/prosecutrix never raised hue and cry,

rather after the alleged incident she left the spot asking bail

petitioner Dipanshu to get her video deleted from the phone of

the bail petitioner Vijay Kumar. Interestingly, aforesaid

incident took place somewhere in September­October, 2018

but even thereafter victim/prosecutrix kept on attending the

phone calls allegedly made by friends of the bail petitioners.

Moreover, incident with regard to uploading of video on the

Internet had come to the notice of the victim/prosecutrix in the

year 2018­2019, but she took no steps at that stage to file the

complaint against the petitioners. Again in December, 2019

victim/prosecutrix was allegedly sexually assaulted by person

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9

namely Prashant, but she remained silent till March, 2020

when FIR at hand came to be lodged against the bail

.

petitioners as well as other co­accused named in the FIR.

7. Medical evidence adduced on record is also of no

help to the case of the prosecution because it has been

categorically opined in the report that there is no indication of

recent sexual intercourse and the hymen of the

victim/prosecutrix was found to be normal. No doubt, at the

time of alleged commission of offence victim/prosecutrix was

15 years old, but having taken note of her conduct, which is

quite apparent from her statements made to the police and

Judicial Magistrate respectively, this Court finds it difficult to

conclude that the victim/prosecutrix was not capable of

understanding the consequences of her being in the company

of the bail petitioners and other accused, rather it appears

that at the time of commission of alleged offence,

victim/prosecutrix of her own volition had been meeting

number of of people, including bail petitioners.

8. Though, aforesaid aspects of the matter are to be

considered and decided by the learned trial Court on the basis

of totality of evidence to be collected on record by the

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10

investigating agency, but having taken note of the aforesaid

glaring aspects of the matter, this Court sees no reason to let

.

the bail petitioners incarcerate in jail for indefinite period

during trial, especially when nothing remains to be recovered

from them

9. It has been repeatedly held by Hon’ble Apex Court

as well as this Court in catena of cases that one is deemed to

be innocent till the time his /her guilt is not proved, in

accordance with law. In the case at hand, the guilt, if any, of

the bail petitioners is yet to be proved, in accordance with law.

10. 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

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11

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 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.

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12

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 first­time
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

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13

social and other problems as noticed by this
Court in In Re­Inhuman Conditions in 1382
Prisons

11. 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 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

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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.”

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

r to
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 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;

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15

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

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

.

character, behaviour, means, position and

(v)
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.

14.

Consequently, in view of the above, present bail

petitions are allowed. Petitioners are ordered to be enlarged

on bail subject to their furnishing personal bond in the sum of

Rs. 2,00,000/­ (Rs. two lac) with one local surety in the like

amount each, to the satisfaction of the learned trial Court/

Magistrate available at the station 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 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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16

15. It is clarified that if the petitioners misuse their

liberty or violates any of the conditions imposed upon them,

.

the investigating agency shall be free to move this Court for

cancellation of the bail.

16. 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 application alone.

The bail petitions stand disposed of accordingly.

(Sandeep Sharma),
Judge
5th May, 2020

(shankar)

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