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Praveen Kumar Gautam vs State Of Himachal Pradesh on 31 August, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.953 of 2018

.

Decided on: 31.08.2018

Praveen Kumar Gautam …Petitioner.

Versus
State of Himachal Pradesh …Respondent.

Coram

The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice
Whether approved for reporting?

For the petitioner: Mr.Ankush Dass Sood, Senior Advocate,
with Mr.Amrinder Singh Rana, Advocate.

For the respondent: Mr.Adarsh K. Sharma, learned Additional

Advocate General, with Ms.Svaneel
Jaswal, Deputy Advocate General.

Sanjay Karol, Acting Chief Justice (Oral)

ASI Ram Pal and ASI Ranbir Singh, Investigating

officers, Police Station Sadar, District Shimla, H.P., are present

alongwith record.

2. FIR No.144/18, dated 17th July, 2018, was registered at

Police Station, Sadar, Shimla, under Sections 376 506 of Indian

Penal Code. The said FIR came to be lodged on the statement of

the prosecutrix, alleging that she had accompanied the petitioner

Praveen Kumar Gautam from village Siwah (Haryana) to Shimla in a

vehicle. At Shimla, she was made to spend the night in a hotel.

During the night, accused forcibly entered her room and sexually

assaulted her. In the morning of 17 th July, 2018, she informed the

01/09/2018 23:13:40 :::HCHP
2

police on telephone which led to the recording of her statement and

consequently registration of the FIR.

.

3. It is a matter of record that same day, i.e. 17 th July,

2018, at about 7.30 PM, accused was arrested by the police, since

when he is behind the bars.

4. Accused denied allegations levelled by the prosecutrix.

Alongwith the instant application, he has placed on record two

documents i.e. (i) complaint lodged by him through his brother at

the very same Police Station, alleging that he is a victim of

conspiracy hatched by his driver Avinash and others, including

Rinku, Pinder Sandhu and the prosecutrix. The circumstances under

which the accused a resident of Haryana, landed up at Shimla

alongwith the prosecutrix and driver Avinash also stand narrated

therein; and (ii) affidavit of the driver Avinash, son of Kanhaiya Lal,

affirming correctness of the contents of this complaint.

5. From the record so made available by the learned

Additional Advocate General, it is evident that the police has carried

out the investigation in relation to both the complaints i.e. the one

filed by the prosecutrix and that of the complainant. Investigation in

the FIR in question is almost complete.

6. Undisputedly, prosecutrix is a major. She has got two

children. The contents of the affidavit filed by the driver casting

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3

doubt on the version of the prosecutrix are admitted to be correct by

him during the course of investigation.

.

7. The averments made in the complaint lodged on behalf

of the petitioner-accused that conspiracy was hatched to blackmail

him and extract money, prima facie lends credence for it has come

in the investigation that on the date of alleged crime, driver Avinash,

his girlfriend Jubi, Pinder Sandhu and Rohit were inconstant touch

with each other on the phone. Within a short span, 59 calls were

made by them amongst each other. They are all residents of

Haryana but were present near Shimla.

8. No doubt, prosecutrix had made a statement under

Section 164 of Code of Criminal Procedure alleging forcible sexual

assault, but in view of overall attending facts and circumstances this

Court is of the considered view that interest of justice would be best

met, if the accused is enlarged on bail, more so when no recovery is

sought to be effected from him and at this point in time, there is no

apprehension of the -petitioner accused threatening, intimidating or

winning over the witnesses. Also, statement of the prosecutrix being

a virgin cannot be said to be correct.

9. The Court also takes into notice the statement made by

driver Avinash to the police, taking a risk of being involved in a crime

of criminal conspiracy. It is not a case of the prosecution that either

the petitioner or his brother have been able to influence the driver,

01/09/2018 23:13:40 :::HCHP
4

who, in fact, is present in the Court and through the learned

Additional Advocate General, maintains the stand taken before the

.

police, verifying the contents of the petitioner’s complaint to be

correct.

10. Apex Court in Prasanta Kumar Sarkar versus 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) danger, of course, of justice being thwarted
by grant of bail.

11. Having holistically considered the nature of offence and

the relevant attending circumstances in favour of the petitioner-

accused, and also in view of the law discussed, herein above, in my

01/09/2018 23:13:40 :::HCHP
5

considered view, it is a fit case in which petitioner should and ought

to be enlarged on bail.

.

12. As such, petitioner, Praveen Kumar Gautam is ordered

to be released on bail on his furnishing personal bond in the sum of

Rs.1.00 lacs (rupees one lakh) with one surety in the like amount to

the satisfaction of the Court concerned. It is clarified that petitioner

shall not tamper with the prosecution evidence, flee away from the

jurisdiction of this Court, try to influence the witnesses or in any

manner act and conduct himself so as to disentitle him from the

discretionary power. Also, he shall always make himself available

during trial. The Court is further directed to comply with the

directions issued by the High Court, vide letter No.HHCVIG/ Misc.

Instructions/93-IV-7139, dated 18.3.2013.

13. Any observation made herein above shall not be taken

as an expression of opinion on the merits of the case and the trial

Court shall decide the matter uninfluenced by any observation made

herein above.

Application stands disposed of.

Copy dasti.

( Sanjay Karol)
Acting Chief Justice

August 31, 2018
( vt )

01/09/2018 23:13:40 :::HCHP

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