IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1794 of 2018
Decided on: 31.12.2018

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Nikku 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 : Mr. Ajay Shandil Abhishek Negi,
Advocates.

For the Respondent : Mr. S.C. Sharma, Mr. Dinesh Thakur and
Mr. Sanjeev Sood, Additional Advocate
Generals with Mr. Amit Dhumal, Deputy
Advocate General.

Sandeep Sharma, Judge (oral):

Bail petitioner namely Nikku Ram, 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. 80/2018 dated

7.5.2018, under Sections 452, 354-A 376 of IPC and Section 4 of POCSO

Act, registered at PS Dhalli, District Shimla, HP.

2. Sequel to order dated 21.12.2018, passed by this Court, H.C.

Vijay Kumar, I/o PP Mashobra, P.S. Dhalli, Shimla, HP, has come present in

Court alongwith record of the case. Mr. Dinesh Thakur, learned Additional

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

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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.

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

7.5.2018, victim-prosecutrix got her statement recorded under Section 154

Cr.PC., at PS Dhalli, alleging therein that on 4.5.2018, bail petitioner, with

wrong intentions, unauthorisedly entered her quarter at Mashobra and

thereafter, ravished her. Complainant-prosecutrix alleged that on the

date of alleged incident, her father had gone to “HIPA” for night duty,

whereas her mother had gone to Pulwahal. She further alleged that at

10:00 pm, somebody knocked the door and she believing that her

grandfather has come, opened the door, but thereafter bail petitioner

forcibly entered the house and made an attempt to outrage her

modesty. Complainant-prosecutrix alleged that bail petitioner in the

presence of her younger sister not only, outraged her modesty but also

sexually assaulted her against her wishes. Subsequently, on 7.5.2018, she

came to the police station alongwith her parents and lodged a complaint

against the bail petitioner, who happened to be a shop keeper in the

nearby locality at Mashobra. After recording the statements of

prosecutrix as well as other family members, police arrested the accused

on 7.5.2018 and since then, he is behind the bars. Prior to filing of present

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petition, petitioner had also filed bail petition before the learned court

below, but the same was dismissed as withdrawn.

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4. Mr. Ajay Shandil, learned counsel for the petitioner while

inviting attention of this Court to Annexure P-2 (Colly) i.e. statements of

prosecution witnesses, stated that during trial all the material prosecution

witnesses including prosecutrix have resiled from their statements given to

the police and as such, present petition has been filed on behalf of the

bail petitioner in the changed circumstances. Learned counsel, while

making this Court to peruse record as well as statements having been

made by the prosecutrix, her mother and sister, forcibly contended that

no case, if any, is made out against the bail petitioner under Sections 452,

354-A and 376 IPC and as such, he deserves to be enlarged on bail. He

contended that all the material prosecution witnesses including victim

and prosecutrix have resiled from their initial statements given to the

police and as such, bail petitioner, who is behind the bars for more than

seven months, deserves to be released on bail forthwith. While referring to

the medical evidence adduced on record by the prosecution, learned

counsel for the petitioner further contended that there is nothing to

suggest that on the date of alleged incident, victim prosecutrix was

subjected to sexual intercourse as alleged in the FIR. Lastly, Mr. Shandil,

learned counsel, contended that bail petitioner has already suffered for 7

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months for no fault of him and he being first offender deserves to be

enlarged on bail, especially, when there is nothing on record to suggest

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that previously cases, if any, were lodged against him in any competent

court of law.

5. Mr. Dinesh Thakur, learned Additional Advocate General,

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

the competent court of law as well as recording of statements of material

prosecution witnesses, 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. However, he fairly stated that bare

perusal of statements having been made by the victim-prosecutrix, her

sister and her mother, clearly suggests that all the material prosecution

witnesses have resiled from their initial statements given to the police. Mr.

Thakur while refuting the contention of Shri Ajay Shandil, that nothing has

come in the medical evidence contended that bare perusal of RFSL

report adduced on record by the prosecution suggests that on the date

of alleged incident, prosecutrix was subjected to sexual intercourse and

as such, it would be too premature at this stage to conclude that bail

petitioner is innocent. Lastly, learned Additional Advocate General

contended that since trial has commenced and yet material prosecution

witnesses are to be examined, it would not be in the interest of justice to

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release the bail petitioner on bail at this stage. However, Mr. Thakur was

unable to dispute that there is no case pending against the bail petitioner

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and he is the first offender.

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

through the record of the case.

7. Having heard the learned counsel for the parties and

perused material available on record, especially, statements of victim

prosecutrix, this Court finds that victim-prosecutrix, has taken altogether u-

turn before the court below during trial. Though in her initial statement

given to police as well as to magistrate, who recorded her statement

under Section 164 Cr.PC, she had alleged that she was ravished by the

bail petitioner on the date of alleged incident, but if her statement on

oath made before the learned trial Court is perused in its entirety, it

completely demolishes the case of the prosecution. Same is the case

with the statements of other material prosecution witness i.e. PW7

younger sister, who as per the case of the prosecution, was present at the

time of the alleged incident and PW8 (mother of the victim), to whom

allegedly prosecutrix, at the fist instance, narrated the whole story. All the

above material prosecution witnesses have not supported the case of the

prosecution and as such, this Court sees no reason to keep the bail

petitioner behind the bars for an indefinite period during the trial. Similarly,

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having carefully gone through the medical evidence adduced on record

by the prosecution, this Court may not be in agreement with the

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argument raised by the learned Additional Advocate General.

8. 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. 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.

9. 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

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ascertain whether the accused was participating in the investigations to

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

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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 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

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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

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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
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.

10. 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.

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

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

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” 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 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. 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

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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

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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.”

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)

(iii)
r nature and gravity of the accusation;

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

14. 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:

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(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

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appropriate application;

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

(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.

15. 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.

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 this application alone. The petition stands accordingly

disposed of.

Copy dasti.

31st December, 2018 (Sandeep Sharma),

manjit Judge

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