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Himachal Pradesh High Court · body

2004 DIGILAW 261 (HP)

BABA SOHAN GIRI v. STATE OF H. P.

2004-10-07

M.K.VERMA

body2004
JUDGMENT M.R. Verma, J.—This petition under Section 439 of the Code of, Criminal Procedure has been preferred by the petitioner-accused (hereafter referred to as the accused) for grant of bail to him in case FIR No. 8/2004 dated 20.1.2004, under Sections 376/313/315/506 of the Indian Penal Code, registered at Police Station, Bharmour, District Chamba. 2. As per the police report, accusations against the accused are that the prosecutrix who was born in a family of Pujari of village temple of Mahadev is the resident of Village Bari. About 12 years before the accused started living in the said temple and within a few days cast such a spell on the prosecutrix who was then 15 or 16 years of age that she would not know as to when she used to go to the accused, what she used to do and as and when she used to regain consciousness she would be lying naked in the bed of the accused. Her father stopped her from going to the accused and within a month thereof he died. The attempts made by the prosecutrix to get rid of the accused resulted in his abusing and beating her but none from the village came forward to protect her. During the last 11 years, the accused impregnated the prosecutrix 7 times because of which she gave birth to four children and there were abortions thrice. None of the children so born survived. The prosecutrix was in a fix as to what to do and what not. Though the entire Illaqua of Bharmour knew as to how the accused was dealing with the prosecutrix but none was prepared to help her. On the contrary people used to blackmail her. In the year 2003, a boy came to the temple who used to treat the prosecutrix as his mother because of the impression that Mata Gauri speaks through her. The prosecutrix could not disclose her miseries to him because of the impression that as and when somebody had come forward to help her, he had died or had suffered immeasurable loss. The accused also used to impress her that they could not harm him because he was a Sidh. Once the said boy took the prosecutrix to his house where she narrated her miseries to him. When the accused came to know about it, the accused threatened to kill the prosecutrix. The accused also used to impress her that they could not harm him because he was a Sidh. Once the said boy took the prosecutrix to his house where she narrated her miseries to him. When the accused came to know about it, the accused threatened to kill the prosecutrix. The matter was finally reported to the police and the investigation in the matter followed. 3. The accused earlier filed Cr.M.P. (M) No. 99 of 2004 in this Court for grant of anticipatory bail, which was dismissed on 17th March, 2004. At present, the investigation in the matter is complete and charge sheet against the accused has already been forwarded to the concerned Court on 5.7.2004. The accused is presently in judicial custody, hence, this petition. 4. 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. 5. It was contended by the learned counsel for the accused that there is no evidence to show that the prosecutrix was not of the age of discretion when she was for the first time allegedly raped by the accused. Further omission of the prosecutrix for about 11 years in reporting the alleged crime to the police is indicative of the fact that even if there were sexual relations between the prosecutrix and the accused, those were with the consent and willingness of the prosecutrix whose version of the threats, cruelty, rape, abortions and giving birth to the children is not corroborated even by her brother and sisters and thus, the material collected by the Investigating Agency does not disclose a prima facie case against the accused and in any case it is only a debatable question of fact whether the accused has committed the alleged offences or not. It was further contended that two of the co-accused, namely, Chhaju Ram and Munshi Ram had already been released on bail. Therefore, in view of the principle of parity and the aforesaid submissions, the accused deserves to be released on bail. 6. On the other hand, the learned Deputy Advocate General contended that the material collected by the police during investigation clearly reveals the involvement of the accused in the commission of offences alleged to have been committed by him which are of very grave and serious nature. 6. On the other hand, the learned Deputy Advocate General contended that the material collected by the police during investigation clearly reveals the involvement of the accused in the commission of offences alleged to have been committed by him which are of very grave and serious nature. Further in view of the self-proclaimed status of Sidh by the accused, he is capable of over owing the prosecution witnesses and thus temper with the prosecution evidence. It was also contended that the role attributed to co-accused Chhaju Ram and Munshi Ram is not similar to the acts of the accused. Therefore, he cannot claim parity with such accused persons in the matter of grant of bail. It has, therefore, been urged that the accused does not deserves bail. 7. A perusal of the record prima-facie reveals that on the strength of being a self proclaimed Sidh, the accused sexually exploited the prosecutrix for a long time and the prosecutrix whom the accused impregnated seven times cannot be said to have submitted to the acts of sex with her consent and of her free will. Prima facie it is made out that because of the fear of the accused being a Sidh she could not dare to complain against him. It is not in dispute that the prosecutrix is semi-literate village woman who cannot be expected not to be under fear of a Sidh. i.e. the accused who even as per his own admission is highly respected by the local population of a society of illiterate and semi-literate people for whom a Saint is nothing less than a God. For them he is all powerful capable of doing anything whatever he likes. According to the common belief entertained by such persons a Sidh can give life to a dead person and can take life of a living human being by virtue of his sidhies which the accused used to proclaim to have acquired by virtue of meditation etc. This belief as entertained by the prosecutrix must have been affirmed by the fact that when her father stopped her from going to the accused, he died. In such circumstances, the version of the prosecutrix at this stage cannot be brushed aside. This belief as entertained by the prosecutrix must have been affirmed by the fact that when her father stopped her from going to the accused, he died. In such circumstances, the version of the prosecutrix at this stage cannot be brushed aside. It is more so when it is admitted case that the prosecutrix had been residing in the temple, the residence of the accused for a sufficiently long time till she exposed the deeds of the accused. 8. No doubt, the brothers and sisters of the prosecutrix had denied personal knowledge of the accused having raped the prosecutrix and or her having given birth to the children and about the alleged abortions, however, none of them was residing in the temple, to have first hand knowledge as to how the prosecutrix was being treated by the accused while residing in the temple. The recovery of a skull of a child during the investigation on identification of the place by the prosecutrix lends corroboration of her version of having been impregnated by the accused and her giving birth to children. The accused refused to give his blood sample to unable DNA test and the only prima facie inference from the refusal of the accused to give his blood sample for DNA test is of his guilt and not of his innocence . at this stage. Thus, the over all perusal of the material on record prima facie shows involvement of the accused in the commission of the offences alleged to have been committed by him. Undoubtedly, the offences committed by the accused are of grave and heinous nature for which the law provide sever punishment. These factors must weigh against the grant of bail to the accused. 9. The accused himself has proclaimed that he is highly respected Saint of the concerned Illaqua and evidently he is so respected because of his being a self proclaimed Sidh. This is admitted fact by itself is sufficient to deter people from making incriminating statements against the accused and even the public servants. This conclusion is fully strengthened because of the allegations of the prosecutrix that despite knowing about her plight, none from the Illaqua came forward to help her. Furthermore, the prosecutrix made complaints to the various authorities, but the law was not set in motion at once despite directions by various authorities directing the investigation of the case. This conclusion is fully strengthened because of the allegations of the prosecutrix that despite knowing about her plight, none from the Illaqua came forward to help her. Furthermore, the prosecutrix made complaints to the various authorities, but the law was not set in motion at once despite directions by various authorities directing the investigation of the case. Thus, something which can be the fear of the Sidh prevented even the police to act as swiftly in the matter as was expected. In these circumstances, there is no escape from the conclusion that if released on bail the accused in all probabilities is likely to tamper with the prosecution evidence by using his influence as a Saint and Sidh. To preserve purity of administration of criminal justice it has to be ensured that truth is not prevented from coming to the surface simply because the accused holds status or the means whereby he can tamper with the prosecution evidence and thus pervert the due process of law and justice. In view of the role attributed to the other two co-accused the accused cannot be treated at par with them and thus principle of parity is not attracted. 10. In view of the above conclusions the accused is not entitled to be released on bail. 11. As a result, this application merits dismissal and is accordingly dismissed.