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2004 DIGILAW 257 (HP)

IQBAL SINGH v. STATE OF H. P.

2004-10-05

M.R.VERMA

body2004
JUDGMENT M. R. Verma, J.: - This application under Section 439 of the Code of Criminal Procedure has been preferred by the petitioner/accused (hereafter referred to as the accused1) for bail in case FIR No. 137/04, dated 25.7.2004, under Sections 363, 366-A, 376, 342, 506 read with Section 34 of the Indian Penal Code, registered at Police Station, Gagret. 2. Prosecution case is that the prosecutrix, aged about 16 years, resides with her mother in village Tatehda. Her mother was beaten up by one Suman Kumari of the same village and the occurrence was reported to the police by the mother of the prosecutrix. On 20.7.2004 one Suman @ Bhundi and Chanchla (both accused in the case) came to the village of the prosecutrix in a vehicle driven by Papa @ Parminder Singh. Accused Suman and Chanchla assured the mother of the prosecutrix that they would recommend her case to the officers. While returning Suman distantly related as Chachi to the prosecutrix, requested the mother of the prosecutrix to send the prosecutrix with her. On this younger brother of the prosecutrix, namely, Asgar also got ready to go along with the prosecutrix. 3. Ultimately, the prosecutrix and her brother went with accused Suman and Chanchla in the vehicle. Suman alighted from the vehicle at Thathal whereas accused Chanchla took the prosecutrix and her brother with her and went to Amb. Leaving the vehicle, Parminder and brother of the prosecutrix there accused Satinder Singh and Chanchla took the prosecutrix on a motorcycle to Jawalaji where one Sanju was already standing at the Adda. He arranged an Auto Rickshaw wherein the prosecutrix and Chanchla travelled for a distance of about 15 kms. and then after covering some distance on foot they reached in a house. Accused broke the lock of one room and they entered the said room. Accused Satinder was following them on the motorcycle. The house was stated to be the house of sister of said Sanju. In the said house during night initially accused Satinder Singh raped the prosecutrix thrice and then accused Sanju also committed rape on her. On 21.7.2004 the prosecutrix and Rockey on a motorcycle and accused Chanchla and Sanju in a Bus returned to Jawalaji from where accused Satinder Singh went away on his motorcycle and the prosecutrix, Sanju and accused Chanchla went to Dhalyara by a Bus. On 21.7.2004 the prosecutrix and Rockey on a motorcycle and accused Chanchla and Sanju in a Bus returned to Jawalaji from where accused Satinder Singh went away on his motorcycle and the prosecutrix, Sanju and accused Chanchla went to Dhalyara by a Bus. At Dhalyara accused Chanchla contacted someone on a telephone and informed the prosecutrix that a Police Officer of Nadaun had been called by her to Kinnu where she would speak to him about the case of her mother-. Thereafter the prosecutrix and Chanchla went to Kinnu by a Bus. At Kinnu one Scooterist appeared on the scene and accused Chanchla informed the prosecutrix that he was the concerned Police Officer. On his Scooter all the three travelled to a distance of about 2 or 3 kms. where they took meals at a Dhaba. Thereafter, they went to Hotel Kailash Parvat. There the prosecutrix was subjected to rape by the alleged Police Officer. Accused Chanchla recommended the case of the mother of the prosecutrix to that person and thereafter he went away. 4. The prosecutrix was then taken by accused Chanchla to her house in Norian where during night the prosecutrix was made to change her clothes and on the next day, i.e. 22.7.2004, she was removed to Amb where she was told that telephonic recommendations were to be got made from the Ranger, i.e. the accused. The prosecutrix was then taken to a house close to Amb Chowk where co-accused Suman, the accused and one more- person were present. Accused Chanchla spoke to the accused about the case, of the mother of the prosecutrix and he telephonically conveyed to someone to take care of the case of the mother of the prosecutrix. Thereafter said co-accused left the room and the accused then committed rape on the prosecutrix. Thereafter accused Chanchla and Suman took the prosecutrix to the Bus Adda where accused Parminder and brother of the prosecutrix met them. Accused Chanchla and Suman left for their houses and the prosecutrix along with her brother came to Kuthiari with a view to return to their house. At Kuthiari Kewal Krishan Fauzi met them who started quarreling with the prosecutrix and ultimately took the prosecutrix and her brother on his motorcycle towards Amb. Accused Chanchla and Suman left for their houses and the prosecutrix along with her brother came to Kuthiari with a view to return to their house. At Kuthiari Kewal Krishan Fauzi met them who started quarreling with the prosecutrix and ultimately took the prosecutrix and her brother on his motorcycle towards Amb. On the way accused Narender Kumar and Parvinder Singh followed the motorcycle and finally stopped the motorcycle in which accused Kewaf Krishan Fauzi was carrying the prosecutrix and her brother. Finally Parminder Singh and Narender Kumar took over the charge of the prosecutrix and her brother and took them in their vehicle to Amb. Brother of the prosecutrix was dropped at petrol pump Dhaba and the prosecutrix was taken away by them with the assurance to drop her in the house of sister-in-law of Parminden Singh. However, they finally removed the prosecutrix to a secluded jungle by the side of a link road. By that time it was dark. During the course of the niglnt accused Parminder Singh and Narender Singh each subjected the prosecutrix to rape thrice and in the morning they brought her back to Dhaba at Amb where brother of the prosecutrix was dropped. Then the prosecutrix and her brother were given Rs.20/- and were sent to their house. When the prosecutrix and her brother were coming home on foot accused Kewal Krishan Fauzi met them at Andora village while travelling in Tempo and was accompanied by Mintu, Ashok and Kapil. Accused Kewal Krishan alighted from the Tempo, slapped the prosecutrix and made her and her brother to sit in the Tempo and took them towards Amb to identify the two persons who had quarreled with him on the previous day. On reaching at Amb a companion of accused Kewal Krishan Fauzi searched out for accused Parminder and his companion and accused Kewal Krishan took the tempo towards Mubarkpur and then drove further to Chohal Hotel Dam via Daulatpur and Hoshiarpur where the prosecutrix was detained by him till 23rd of July, 2004 and was repeatedly raped. When driver Mintu informed accused Kewal Krishan Fauzi that the matter is taking serious turn, the latter despatched the prosecutrix to her house threatening that she would not reveal anything to anybody failing which he would do away with her entire family. On returning home the prosecutrix reported the matter to the police and the investigation followed. When driver Mintu informed accused Kewal Krishan Fauzi that the matter is taking serious turn, the latter despatched the prosecutrix to her house threatening that she would not reveal anything to anybody failing which he would do away with her entire family. On returning home the prosecutrix reported the matter to the police and the investigation followed. As a result, the accused and co-accused, other than accused Sanjay Kumar, have been arrested and are presently confined in judicial custody. 5. The accused has preferred the present bail application on the grounds that the story of the prosecution ex facie is unbelievable and the accused is not connected with the commission of the offence on the basis of the material collected by the police. 6. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the police report and the investigation records. 7. It was contended by the learned Counsel for the accused that the material collected by the investigating agency during the investigation is of highly fragile nature which does not connected the accused with the commission of the offence. It was further contended that whatever fragile material has been collected by the prosecution. In fact, stands rebutted by the stand of the prosecutrix taken by her before the Press and to the police authorities and the Courts, proclaiming that she was confined, beaten tortured and coerced by the police to falsely implicate the accused one Kewal Krishan Fauzi in the offence Therefore, debatable questions of facts arise in the case for consideration in view of the prosecutrix herself having denied allegations against the accused person, thus, the accused is entitled to be released on bail. To substantiate his contention, the learned Counsel for the accused has relied on various decisions holding that in a case where debatable questions, particularly the admission of the prosecutrix in favour of the accused, arise in a criminal case, the accused is entitled to be released on bail. This being the settled position, the decisions relied for the accused need not be referred to in detail herein. 8. This being the settled position, the decisions relied for the accused need not be referred to in detail herein. 8. On the other hand, the learned Deputy Advocate General contended that the accused is duly specified as the rapist in the FIR and the material collected during investigation, prima facie, reveals his involvement in the commission of the offence alleged to have been committed by him. It was further contended that the press statements given by the prosecutrix claiming that she was confined, beaten, tortured and coerced by the police to name the accused as the rapist, have been levelled much after the registration of the FIR as is the admitted case of the prosecutrix herself. Therefore, her version as given to the press and as brought to the notice of the Courts by way of application, petition, is an after thought and she is acting at the behest of the accused persons who are influential persons of the area concerned and thereby have won over the prosecutrix. It has, therefore, been urged that the accused who has manipulated through his supporters and well-wishers to win over the prosecutrix and thereby has tampered with the prosecution evidence and is involved in the commission of a grave offence, is not entitled to be released on bail. 9. A perusal of the police report and the investigation records, prima facie reveals the involvement of the accused in the commission of the offence alleged to have been committed by him. He has been specified as the rapist in the FIR by his designation of Ranger (Forest Range Officer) at Amb and it is not disputed for the accused that he was Ranger at Amb at the relevant time. There is material on record to show that he even rang up the Police and recommended the police to help the mother of the prosecutrix in the case reported by her to the police. On the basis of the material collected by the investigating agency, it cannot be said at this stage that the accused is innocent or his involvement in the commission of the crime is doubtful. 10. The prosecutrix admittedly had made a press statement that she was confined, beaten, tortured and coerced by the police to name the accused and one Kewal Krishan inter alia as the rapists. 10. The prosecutrix admittedly had made a press statement that she was confined, beaten, tortured and coerced by the police to name the accused and one Kewal Krishan inter alia as the rapists. She has also moved an application under Section 164 of the Code of Criminal Procedure in the Court of. the learned Judicial Magistrate at Amb claiming that she was confined, beaten, tortured and coerced by the police as aforesaid and her statement be recorded under Section 164 of the Code of Criminal Procedure. The application, has been dismissed by the learned Judicial Magistrate. A petition under Section 482 of the Code filed by the prosecutrix seeking direction of this Court to the concerned Judicial Magistrate to record her statement under Section 164 of the Code or in the alternative directions to the Police to get her statement recorded under Section 164 of the Code also stands dismissed vide order dated 5.10.2004 in Cr. M.M.O. No. 97 of 2004 on the premises that the actions of the prosecutrix in going to the press and the Courts do not seem to be independent and bona fide. It is her admitted case that she got rid of the alleged confinement by the police on 4.8.2004 and made a complaint to the Superintendent of Police and when no action was taken, she made the said application to the Magistrate on 7.8.2004. Thus, as per her own admission, the period of her alleged confinement by the police was during the period 29.7.2004 to 4.8.2004 whereas the FIR wherein the accused has been specified as the rapist, was lodged on 25.7.2004. Apparently, it appears improbable that the police will confine, beat, torture and coerce the prosecutrix to add the accused and Kewal Krishan as the rapists on the 5th day of the lodging of the FIR wherein they have already been named as the rapists. The only inference which can be, prima facie, drawn in these circumstances is that the accused and co-accused Kewal Krishan, one of whom is a Forest Range Officer of the area and the other a retired Army personnel, through their supporters have won over the prosecutrix to indulge in the making of the aforesaid press statements, application and the petition. 11. In view of the above conclusions, the accused is not entitled to be released on bail. 12. 11. In view of the above conclusions, the accused is not entitled to be released on bail. 12. As a result, this petition merits dismissal and is accordingly dismissed.