IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.M.P.(M) No.2344 of 2019
Decided on: 03.01.2020

.
Ram Chander ……petitioner

Versus
State of H.P. …… respondent

……………………………………………………………………………………
Coram
The Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1

For the petitioner :

For the respondent :
r to Mr. B.S. Baliyan Advocate.

Mr. Anil Jaswal, Additional
Advocate General with Mr. Manoj
Bagga, Assistant Advocate General, for

the respondent.

ASI Shiv Kumar, I.O. P.S.
Bhabanagar.

Jyotsna Rewal Dua, J (Oral)

Petitioner seeks regular bail under Section 439 of Criminal

Procedure Code in FIR No.69/2006, dated 16.8.2006, under Section 376 of

the Indian Penal Code, registered at Police Station, Bhabanagar, District

Kinnour, H.P.

2. I have heard learned counsel for the parties and gone through

status report produced today by I.O. ASI Shiv Kumar, P.S. Bhabanagar,

which is taken on record, as well as the record, relevant for the purpose of

instant petition.

1

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

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3(i). Status report reveals that on the basis of statement made by

prosecutrix on 16.8.2006 under Section 154 Cr.PC, the FIR was registered to

.

the effect that:- prosecutrix aged 13 years, while studying in Class-IV,

boarded an Usha Coach bus and reached village Badhal to meet her brother

and sister-in-law; she had her meals there in a hotel whereafter she went to

meet her relatives; around 1.30 P.M. she again had her meals in another hotel

and embarked on her return journey back home; as her bus had already

departed, therefore, she was walking on the road so that she could board a

bus as and when it arrived; a little ahead to the Kinnaur gate, she was

dragged by a person (bail petitioner) to the bushes and was raped there; the

bail petitioner as well as the prosecutrix thereafter together came to the road;

the prosecutrix kept crying; a truck stopped gave her the lift; she disclosed

all happenings to the occupants of the truck; prosecutrix reached ‘Choura

Barrier’ in this truck, from where she came in the vehicle of her maternal

uncle to the Police Station, Bhabanagar, for lodging the report.

The aforesaid incident was narrated to the police officials of

Bhabanagar, Police Station, whereafter she accompanied them to Village

Bhadal; she identified a person (bail petitioner) sitting in a hotel as

perpetrator of the crime; on seeing the police, the said person ran away, the

said person was identified as bail petitioner, who had raped the prosecutrix.

3(ii) MLC was conducted upon the victim. Clothes worn by her on

16.8.2006, her pubic hair and vaginal slides preserve were sent to State

Forensic Science Laboratory, Junga. According to the report, human semen

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was detected in the samples in the clothes. Her date of birth was recorded

as 5.6.1993 in records of Gram Panchayat, Ponda Government Primary

.

School, Kangos. According to radiologist’s report the prosecutrix was above

the reflected age, but below 16 years.

3(iii) Since the petitioner could not be arrested, therefore, he was

declared as proclaimed offender on 24.01.2008 by the Additional Chief

Judicial Magistrate, Kinnaur at Rekongpeo. The bail petitioner was

eventually arrested on 1.08.2018, pursuant to which a criminal case was

registered against him under Section 174(A) of the Indian Penal Code in FIR

No.40/2018 at Police Station, Bhabanagar. Vide judgment dated 4.12.2018,

the petitioner has been acquitted in the said case.

4. The petitioner is in judicial custody w.e.f. 6.8.2018. Instant

bail petition has been moved mainly on the ground that:- SFSL report

(Annexure P-1) has been submitted on 31.08.2019, wherein the DNA profile

obtained from the bail petitioner did not match with DNA profile obtained

from the victim/prosecutrix. The conclusion of the SFSL report is

reproduced hereinafter:-

“OBSERVATIONS:

i) Exhibits-1a (Salwar, name withheld), Exhibit-1b (kurta, name
withheld), Exhibit-2 (blood on FTA, Ram Chander) and Exhibit-7 (blood
on FTA, name withheld) showed amplification at all the 20 Autosomal
STR loci and Amelogenin.

ii) A mixed DNA profile was obtained from Exhibit-1a (Salwar,
name withheld) its one component pertains to male individual, which did
not, show match with the DNA profile obtained from Exhibit-3 (blood on
FTA, Ram Chander) while its other component showed match with the
DNA profile Exhibit-7 (blood on FTA, name withheld).

iii) A mixed DNA profile was obtained from Exhibit-1b (kurta, name
withheld), its one component pertains to male individual, which did not

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show match with the DNA profile obtained from Exhibit-3 (blood on
FTA, Ram Chander).”

CONCLUSIONS:

On the basis of the above analysis performed on the aforesaid exhibits, it

.

is concluded that:-

i) Two DNA profiles (one male and one female) were obtained from
reference samples viz. Exhibit-3 (blood of FTA, Ram Chander) and
Exhibit-7 (blood on FTA, name withheld) respectively.

ii) DNA profile obtained from Exhibit-1a (Salwar, name withheld)

matched completely with the DNA profile obtained from Exhibit-7 (blood
on FTA, name withheld) and was different from the DNA profile obtained
from Exhibit-3 (blood on FTA, Ram Chander)

iii) DNA profile obtained from Exhibit-1b (kurta, name withheld)
was different from the DNA profile obtained from Exhibit-3 (blood on

FTA, Ram Chander)

iv) The male DNA profile obtained from Exhibit-1a (Salwar, name
withheld) and Exhibit-1b (kurta, name withheld) matched completely
with each other.”

The SFSL report is to the effect that component of DNA

profile obtained from clothes etc. of prosecutrix belonging to a male

individual did not match with that of bail petitioner.

5. It is apt to refer to the guidelines for grant/or refusal of bail,

reiterated by the Hon’ble Apex Court in Cr. Appeal No. 1603 of 2019, titled

SectionShri P. Chidambaram vs. Central Bureau of Investigation, decided on

22.10.2019, relevant segments whereof are reproduced hereinafter:-

” 17. Expression of prima facie reasons for granting or

refusing to grant bail is a requirement of law especially
where such bail orders are appealable so as to indicate
application of mind to the matter under consideration and the
reasons for conclusion. Recording of reasons is necessary
since the accused/prosecution/victim has every right to know
the reasons for grant or refusal to grant bail. This will also
help the appellate court to appreciate and consider the
reasonings for grant or refusal to grant bail. But giving
reasons for exercise of discretion in granting or refusing to
grant bail is different from discussing the merits or demerits
of the case. At the stage of granting bail, an elaborate
examination of evidence and detailed reasons touching upon
the merit of the case, which may prejudice the accused,
should be avoided. Observing that “at the stage of granting
bail, detailed examination of evidence and elaborate

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documentation of the merits of the case should be avoided”,
in Niranjan Singh, it was held as under:-

“3. ……Detailed examination of the evidence and elaborate
documentation of the merits should be avoided while passing

.

orders on bail applications. No party should have the

impression that his case has been prejudiced. To be satisfied
about a prima facie case is needed but it is not the same as an
exhaustive exploration of the merits in the order itself.”

22. The jurisdiction to grant bail has to be exercised on the
basis of the well-settled principles having regard to the facts
and circumstances of each case. The following factors are to
be taken into consideration while considering an application
for bail:- (i) the nature of accusation and the severity of the
punishment in the case of conviction and the nature of the

materials relied upon by the prosecution; (ii) reasonable
apprehension of tampering with the witnesses or
apprehension of threat to the complainant or the witnesses;

(iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his

abscondence; (iv) character behaviour and standing of the

accused and the circumstances which are peculiar to the
accused; (v) larger interest of the public or the State and
similar other considerations (vide SectionPrahlad Singh Bhati v.
NCT, Delhi and another (2001) 4 SCC 280). There is no hard
and fast rule regarding grant or refusal to grant bail. Each
case has to be considered on the facts and circumstances of

each case and on its own merits. The discretion of the court
has to be exercised udiciously and not in an arbitrary
manner. At this stage itself, it is necessary for us to indicate
that we are unable to accept the contention of the learned

Solicitor General that “flight risk” of economic offenders
should be looked at as a national phenomenon and be dealt

with in that manner merely because certain other offenders
have flown out of the country. The same cannot, in our view,
be put in a straight-jacket formula so as to deny bail to the
one who is before the Court, due to the conduct of other

offenders, if the person under consideration is otherwise
entitled to bail on the merits of his own case. Hence, in our
view, such consideration including as to “flight risk” is to be
made on individual basis being uninfluenced by the
unconnected cases, more so, when the personal liberty is
involved.

23. SectionIn Kalyan Chandra Sarkar v. Rajesh Ranjan and another
(2004) 7 SCC 528, it was held as under:-

“11. The law in regard to grant or refusal of bail is very well
settled.The court granting bail should exercise its discretion
in a judicious manner and not as a matter of course. Though
at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in
such orders reasons for prima facie concluding why bail was

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being granted particularly where the accused is charged of
having committed a serious offence. Any order devoid of
such reasons would suffer from non- application of mind. It
is also necessary for the court granting bail to consider
among other circumstances, the following factors also before

.

granting bail; they are:

(a) The nature of accusation and the severity of punishment
in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness

or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the
charge. (SectionSee Ram Govind Upadhyay v. Sudarshan Singh
(2002) 3 SCC 598 and SectionPuran v. Rambilas (2001) 6 SCC 338.)

Referring to the factors to be taken into consideration for
grant of bail, in SectionJayendra Saraswathi Swamigal v. State of
Tamil Nadu (2005) 2 SCC 13, it was held as under:-
“16. …….The considerations which normally weigh with the

court in granting bail in non-bailable offences have been
explained by this Court in SectionState v. Capt . Jagjit Singh AIR

1962 SC 253 and SectionGurcharan Singh v. State (Delhi Admn.)
(1978) 1 SCC 118 and basically they are — the nature and
seriousness of the offence; the character of the evidence;
circumstances which are peculiar to the accused; a reasonable
possibility of the presence of the accused not being secured at

the trial; reasonable apprehension of witnesses being
tampered with; the larger interest of the public or the State
and other similar factors which may be relevant in the facts
and circumstances of the case……”

24. After referring para (11) of Kalyan Chandra Sarkar, in
State of U.P. through CBI v. Amarmani Tripathi (2005) 8

SCC 21, it was held as under:-

“18. It is well settled that the matters to be considered in an
application for bail are (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 charge; (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 tampered
with; and (viii) danger, of course, of justice being thwarted
by grant of bail [see SectionPrahlad Singh Bhati v. NCT, Delhi
(2001) 4 SCC 280 and Gurcharan singh v. State (Delhi
Admn.)(1978) 1 SCC 118]. While a vague allegation that the
accused may tamper with the evidence or witnesses may not
be a ground to refuse bail, if the accused is of such character
that his mere presence at large would intimidate the witnesses
or if there is material to show that he will use his liberty to

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subvert justice or tamper with the evidence, then bail will be
refused……..”.

Hon’ble Apex Court in Criminal Appeal No. 1309 of

.

2018 titled SectionSangitaben Shaileshbhai vs. State of Gujarat and

anr., held as under:-

“………while adjudicating a bail application, Section 439 of
the Code of Criminal Procedure, 1973 is the guiding

principle wherein Court takes into consideration, inter alia,
the gravity of the crime, the character of the evidence,
position and status of the accused with reference to the victim
and witnesses, the likelihood of the accused fleeing from
justice and repeating the offence, the possibility of his

tampering with the witnesses and obstructing the course of
justice and such other grounds. Each criminal case presents
its own peculiar factual matrix, and therefore, certain grounds
peculiar to a particular case may have to be taken into
account by the Court. However, the Court has to only opine

as to whether there is prima facie case against the accused.
The Court must not undertake meticulous examination of the

evidence collected by the police, or rather order specific tests
as done in the present case.”

5. Taking into consideration the facts and circumstances of the

case, the nature of allegations made against the bail petitioner without

discussing the evidence at this stage, however, considering the status report

in its entirety and the SFSL report, I am inclined to grant bail to the

petitioner. Bail petition records willingness of the petitioner to cooperate the

Investigating Agency and to abide by all the conditions to be imposed upon

him. He has undertaken not to jump over the bail as well as not to temper

the prosecution evidence. He is permanent resident of village Badhal, PO

Jeori, Tehsil Rampur, District Shimla, H.P. This bail application is

accordingly allowed. Bail petitioner is ordered to be released in the above

mentioned FIR, subject to his furnishing personal bond in the sum of

Rs.75,000/- (Rupees Seventy Five thousand only) with one local surety in

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the like amount to the satisfaction of learned Trial Court, subject to

following conditions:-

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1. Petitioner will join the investigation of case as

and when called for by the Investigating Officer in
accordance with law.

2. Petitioner will not leave India without prior
permission of the Court.

3. Petitioner shall not temper with the evidence or

hamper the investigation

4. Petitioner will not directly or indirectly make
any inducement, threat or promise to the Investigating

Officer or any person acquainted with the facts of the

case so as to dissuade him/her from disclosing such
facts to the Investigating Officer or Court.

5. Considering the fact that bail petitioner was

declared proclaimed offender on 24.1.2008 and was
arrested on 1.08.2018, it is ordered that bail petitioner

will report himself to the Police Station, Bhabanagar,
District Kinnour, H.P. on every Monday after every

two weeks. In case of single default on his part to
abide by this condition, it will be open for the

Investigating Agency to move appropriate application
seeking cancellation of the bail.

6. Petitioner shall attend the trial and will remain
present in learned Trial Court on each and every
hearing of the case in question.

7. It shall be open for the prosecution to move for
cancellation of the bail in case the petitioner abuses
the liberty granted and breaches the conditions of
bail.

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Any observation hereinabove shall not be taken as an
expression on merits of the case and learned Trial Court shall
decide the matter uninfluenced by any of observations made

.

hereinabove. Accordingly, this petition stands allowed in above

terms.

Copy dasti.

(Jyotsna Rewal Dua)
Judge

03.01.2020
(Rohit)

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