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Rohit Kumar vs State Of Himachal Pradesh on 30 October, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1357 of 2018
Decided on: 01.11.2018

.

Rohit Kumar ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Anirudh Sharma, Advocate.

For the Respondent : Mr. S.C. Sharma, Mr. Dinesh Thakur and
Mr. Sanjeev Sood, Additional Advocate
Generals, for the State.

Sandeep Sharma, Judge (oral):

Bail petitioner namely Rohit Kumar, who is behind bars since

5.4.2018, 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. 23/18 dated 3.4.2018, under Sections 363, 366 and

376 of IPC and Section 4 of POCSO Act, registered at PS Darlaghat, District

Solan, HP.

2. Sequel to order dated 11.10.2018, passed by this Court, SHO

Moti Singh, P.S. Darlaghat, District Solan, 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

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

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2

the basis of the investigation carried out by the investigating agency.

Record perused and returned.

.

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

referred herein above came to be lodged at the behest of the

complainant namely Bagwan Singh, who alleged that his minor daughter

has been kidnapped by the bail petitioner on 1.4.2018. On the basis of

complaint having been made by the aforesaid complainant, police

carried out investigation and registered case against the bail petitioner

under Section 363 of IPC. On 4.1.2018, police recovered victim-prosecutrix

from the house of maternal uncle of the petitioner at village

Shaamlii/Sabtu, U.P. Police, after having recorded statement of the

victim-prosecutrix, subsequently added Sections 366 376 of IPC and

Section 4 of POCSO Act, against the present bail petitioner and since

5.4.2018, bail petitioner is behind bars.

4. On 5.4.2018, police got victim-prosecutrix examined from the

medical officer at CHC Arki. Victim-prosecutrix also got her statement

recorded before the learned JMIC-I, Solan, under Section 164 CrPC., on

6.4.2018, wherein she specifically stated that she of her own volition had

joined the company of bail petitioner and at no point of time, she was

compelled by the bail petitioner to leave her house. She categorically

stated before the Magistrate in her statement under Section 164 Cr.PC

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that she had prior acquaintance with bail petitioner, to whom she was

meeting for the last 8 to 9 months and she is interested in marrying him.

.

Victim prosecutrix further stated before the Magistrate that she of her own

devolved physical relations with the bail petitioner and she wants to marry

him, but her parents are not agreeing for the same.

5. Mr. Anirudh Sharma, learned counsel representing the bail

petitioner while inviting attention of this Court to the status report/record

vehemently argued that no case much less under Section 376 IPC is made

out against the bail petitioner because there is no material available on

record suggestive of the fact that victim-prosecutrix was subjected to

sexual intercourse against her wishes. He further contended that bare

perusal of statement having been made by the prosecutrix under Section

164 Cr.PC before the Magistrate clearly reveals that she of her own

volition joined the company of the bail petitioner and at no point of time,

she was compelled by the petitioner to develop physical relations with

him. While referring to the record, Mr. Sharma, contended that there is no

definite evidence adduced on record by the prosecution to demonstrate

that the victim-prosecutrix was minor at the time of the alleged incident,

rather there is contradictory evidence because as per own case set-up

by the prosecution, prosecutrix was 17 years and 2 months’ old at the time

of the alleged incident, whereas as per medical evidence adduced on

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record, age of the victim-prosecutrix was shown to be 15 to 19 years. He

further contended that as per opinion rendered by the dental surgeon,

.

age of the victim-prosecutrix is between 18 to 21 years. Lastly, Mr. Sharma

contended that further perusal of report rendered by the medical officer,

who had an occasion to medically examine the prosecutrix, nowhere

suggests that prosecutrix was subjected to forcible sexual intercourse. He

contended that since challan already stands filed in the competent court

of law and nothing is required to be recovered from the bail petitioner, he

deserves to be enlarged on bail during the pendency of the trial.

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

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

the competent court of law, 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, rather needs to be dealt with

severely. Mr. Thakur contended that evidence adduced on record

clearly suggests that on the date of alleged incident, victim-prosecutrix

was minor and as such, consent, if any, given by her is of no

consequence. While referring to the statement of victim-prosecutrix

recorded under Section 164 Cr.PC, Mr. Thakur contended that since

victim-prosecutrix was minor, no benefit, if any, can be drawn by the bail

petitioner of her statement recorded under Section 164 Cr.PC. While

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referring to the medical evidence adduced on record by the prosecution,

Mr. Thakur contended that it has come in medical evidence that

.

possibility of sexual intercourse cannot be ruled out. Mr. Thakur argued

that as per evidence available on record, victim-prosecutrix was 17 years

and 2 months old at the time of the alleged incident and as such, there is

no force in the argument of Mr. Anirudh Sharma, learned counsel for the

petitioner that there is no definite evidence to demonstrate that

prosecutrix was not minor at the time of the alleged incident and as such,

present petition deserves to be rejected outrightly.

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

through the record of the case.

8. Having heard the learned counsel for the parties and

perused material available on record, this Court finds that victim-

prosecutrix, as per own case set-up by the prosecution was 17 years and 2

months old, at the time of the alleged incident, who had prior

acquaintance with the bail petitioner namely Rohit. Record further

reveals that as per own statement of prosecutrix, she was in constant

touch with the bail petitioner for 8 to 9 months. In her statement recorded

under Section 164 Cr.PC., she categorically stated that she of her own

volition joined the company of the bail petitioner and she was never

compelled by the bail petitioner to have physical relations with him.

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Though, material adduced on record by the prosecution indicates that

victim-prosecutrix was 17 years 2 months old at the time of alleged

.

incident, but medical evidence available on record suggests that age of

the victim-prosecutrix was between 15 to 19 years. Similarly, opinion of

dental surgeon suggests that age of the victim-prosecutrix may be

between 18 to 21 years at the time of alleged incident.

9. Leaving everything aside, if the statement having been

given by the prosecutrix under Section 164 Cr.PC., before the Magistrate is

perused and examined, by no stretch of imagination, it can be said that

she was not capable of understanding the consequence of her being in

company of the bail petitioner, rather it appears that she of her own will

joined the company of the bail petitioner, to whom she knew for last 8 to

9 months. 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

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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.

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 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

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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
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.

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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
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

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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.”

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;

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(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.

.

15. 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:

(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
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.

16. 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.

17. Any observations made hereinabove shall not be construed

to be a reflection on the merits of the case and shall remain confined to

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the disposal of this application alone. The petition stands accordingly

disposed of.

.

Copy dasti.

1st November, 2018 (Sandeep Sharma),

manjit Judge

r to

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