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2004 DIGILAW 304 (HP)

RAJEEV KUMAR v. STATE OF H. P.

2004-11-02

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.: This petition under Section 439 of the Code of Criminal Procedure has been filed by the petitioner-accused (hereinafter referred to as the accused) for grant of bail in case FIR No. 34/2004 dated 19.2.2004, under Section 376 iPC and Section 3 of 1 the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station, Oharamshala. 2. Case of the prosecution in brief is that the prosecutrix is a resident of Kuppa in Tehsil Pangi and belongs to a Scheduled Tribe. She was born on September 10, 1972. She came to Dharamshala in the year 1996 to acquire higher education where she was residing in a Women Hostel. The accused, who is presently posted as SDO, H.P.P.W.D. at Gaggal, and the prosecutrix were introduced to each other by Kumari Annu in the month of December, 1997 at Dhauladhar Hotel, Dharamshala. Thereafter, the accused had been meeting the prosecutrix and also got acquainted with other girls of the Hostel. He used to take them on joy-trips. In due course he proposed and promised to marry the prosecutrix. One day, he took her to Jawalaji Temple and put sindoor on the parting of hair of her head and told her to keep it a secret till he made his mother to agree for their marriage. The prosecutrix completed her graduation in 1999 and went for DP.Ed. Course to Maharashtra. During the period when the prosecutrix visited her native place, the accused used to remain in her company and during this period he established physical relations with her while staying at different places like Jawalji, Jogindernagar, Shimla, Kullu, Mcleod Ganj, Palampur and Hamirpur, where he had been staying with the prosecutrix claiming her to be his wife. Once he too the prosecutrix to Mussourie where they stayed in a hotel for 7 days. In the year 2001 prosecutrix went to her native place and joined service at Pangi. The accused had been contacting the prosecutrix at Pangi on telephone and had been inviting her to Kangra. He had also been writing letters to her. The accused thus exploited the prosecutrix physically and mentally for seven years, during which he pregnated her twice and got her aborted twice. When the prosecutrix insisted for marriage, he refused to marry her. The accused had been contacting the prosecutrix at Pangi on telephone and had been inviting her to Kangra. He had also been writing letters to her. The accused thus exploited the prosecutrix physically and mentally for seven years, during which he pregnated her twice and got her aborted twice. When the prosecutrix insisted for marriage, he refused to marry her. The investigation in the case is complete and the charge-sheet has already been submitted against the accused and the case is now listed for framing of charge. The bail has been prayed for on the grounds that on receipt of the documents under Section 207 Cr.P.C, it has been found that there are various infirmities and discrepancies in the prosecution case and new facts have been noticed; that there is a delay of more than five years in lodging the FIR and charge of rape has been levelled against the accused despite the fact that the prosecutrix after terminating her pregnancy continued to have sexual relations with the accused even according to the version of the prosecution, that investigation in the case is complete, that the accused has no past criminal history and that on the basis of the material relied upon by the Investigating Agency, the accused in all probabilities is likely to be acquitted of the charges. 3. I have heard the learned Counsel for the accused and the learned Advocate General for the respondent-State and have also perused the police report and the investigation records. 4. It has been contended by the learned Counsel for the accused that in view of the material brought on record by the prosecution, the ingredients of an offence of rape are not made out but it is writ large in the case of the prosecution itself that the physical relations between the accused and the prosecutrix were with the consent and willingness of the prosecutrix, who at the relevant time was a grown up woman of the age of description. It was also contended that the FIR in the case is highly delayed and the such delay is of the magnitude that in between the prosecutrix is stated to have become pregnant twice and pregnancy was terminated wife but without any murmur by the prosecutrix who gave her wrong name and address to the Doctor who terminated the pregnancy atlest once. Therefore, the nature of the allegations against the accused and the facts and circumstances of the case are such that his incarceration is not going to serve any useful purpose and he deserves to be released on bail. 5. On the other hand, the learned Advocate General while opposing the bail plea contended that the prosecutrix belonging to a Scheduled Tribe came from backward area and the accused manured to get himself acquainted with her through a girl and promised to marry her, then took her to a temple, put sindoor on the parting of the hairs of her head and thereafter pursuant to the promises of marriage and the act of putting Sindoor in her Mang in a sacred place fraudulently succeeded in having physical relations with the prosecutrix but put off the marriage which he never intended to perform on the pretext that he would first get his sister married and then get the consent of his mother and thereafter will marry the prosecutrix. It was also contended that putting sindoor on the parting of the hair of the head of the prosecutrix by the accused in a sacred place like Jawalaji Temple was sufficient to make the prosecutrix to believe that the accused is her husband and would marry her in due course to give social recognition to their status as husband and wife and under this belief she continued to submit to the sexual advances of the accused. Therefore, the consent of the prosecutrix for sexual intercourse with her by the accused having been taken by fraudulent means the accused committed heinous offence which disentitles him for grant of bail. It was further contended that the accused had played fraud even on the Courts by making various applications for grant of anticipatory bail by concealing that one of the offences alleged to have been committed by him was under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, wherein anticipatory bail could not be granted and also concealing in his successive applications factum of his having, filed earlier applications. This act and conduct of the accused itself is indicative of the fact that if released on bail the accused will indulge in tampering with the prosecution evidence by all means at his command which he does not lack because of the post he holds. This act and conduct of the accused itself is indicative of the fact that if released on bail the accused will indulge in tampering with the prosecution evidence by all means at his command which he does not lack because of the post he holds. Therefore urged the learned Advocate General, the accused does not deserve to be released on bail. 6. A perusal of the record reveals that despite having association with the prosecutrix and having won over her love the accused did not commit sexual intercourse with her for quite sometime. As per the material on record, he succeeded in having physical relations with the prosecutrix only after he had assured her of marrying her after getting the consent of his mother and after having taken her to Jawalaji and having applied Sindoor to her Mang which is a rite performed by a man when he accepts a woman as his wife. No doubt, as and when the accused had sexual intercourse with the prosecutrix, she appears to have submitted to his desire without any protest. The record also reveals that the accused had been taking the prosecutrix to different places and keeping her with him by declaring her to be his wife. In these circumstances, prima facie conclusion which can be arrived at is that the want of any protest by the prosecutrix against sexual advances of the accused was because of her faith that the accused had accepted her as his wife by putting Sindoor to her Mang at a sacred and holy place and he had been occasionally keeping her with him as his wife. A consent for sexual intercourse given by a woman in these circumstances cannot be said free consent but it was given under the circumstances created by the accused to make the prosecutrix belief that he had already accepted her as his wife by putting Sindoor to her Mang and would marry her after getting the permission of his mother to give social recognition to the marriage. It cannot therefore be said that the accused is not prima facie shown to have committed an offence of rape. 7. It cannot therefore be said that the accused is not prima facie shown to have committed an offence of rape. 7. The learned Counsel for the accused to substantiate his contention that mere promise to marry the prosecutrix and then having sexual intercourse with her and ultimately decliningly to marry her is not a misconception of fact because a false promise is not a fact, hence the accused cannot be said to have committed the offence, relied upon Kumaresh Chkkappa Bagodi v. State of Karnataka, 2002(2) Crimes 63, State of Maharashtra v. Udhab, 2002(3) Crimes 203 (S.C.) and Uday v. State of Karnataka, AIR 2003 S.C. 1639. The case law cited for the accused need not be set out in detail here. Suffice to say that the ratio in these cases is that where the accused on a promise to marry the prosecutrix had sexual intercourse with her and ultimately declined to marry her does not amount to an offence under Section 376 IPC unless the prosecutrix is proved to be less than 16 years of age, and it is more so in a case where the prosecutrix is aware of the fact that she and the accused belonged to different castes and their marriage would b€ opposed by their family members. 8. Be it stated that in the aforesaid cases the judgments were rendered in appeal after the full trial of the case before the trial Court that is to say when the entire evidence was available for appreciation to find out whether the act of the accused amounted to an offence of rape or not. Evidently, such a ratio is not attracted in a case which is at the stage of framing of charge. In this case, it is not the bare promise by the accused to marry the prosecutrix to make her consent for the sexual intercourse with the accused. Here two additional factors are relied upon by the prosecution to show that the consent of the prosecutrix to have sex with the accused was not voluntary and free. First of such factor is the taking of the prosecutrix by the accused before having any physical relations with her to Jawalaji, putting Sindoor in her Mang which is recognised by Hindus as a very import ritual of accepting a woman as his wife by the man putting Sindoor in her Mang. First of such factor is the taking of the prosecutrix by the accused before having any physical relations with her to Jawalaji, putting Sindoor in her Mang which is recognised by Hindus as a very import ritual of accepting a woman as his wife by the man putting Sindoor in her Mang. The second factor is proclaiming the prosecutrix by the accused as his wife at different places where they used to stay. False promise to marry may not be a fact as held by the Honble Supreme Court in Udays case (supra) but putting Sindoor in her Mang of a woman of marriageable age and proclaiming her as wife are the factors which could prima facie lead the prosecutrix to misconceive that she was submitting to a person for sex who had already accepted her as his wife. Therefore, the law cited for the accused has no application to the facts and circumstances of this case particularly at pre-charge stage of the trial. 9. Thus, the gravity of the offence and the means adopted to commit it are the factors which must weigh against the grant of bail to the accused. 10. It is a matter of record that the accused despite being aware of the fact that a case under Section 376 IPC and Section 3 of the Scheduled Castes and Tribes (Prevention of Atrocities) Act had been registered against him filed an application for grant of anticipatory bail which is specifically barred. The learned Sessions Judge, Kangra at Dharamshala, dismissed the application on the ground that a prima facie case existed against the accused and grant of bail in such a case was barred by the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The accused then filed an application in this Court for regular bail on the allegations that he was surrendered before this Court which was also rejected with the directions to the accused to surrender before the competent Court at Dharamshala. Thus, his application for grant of anticipatory bail and regular bail stood rejected. The accused then filed an application in this Court for regular bail on the allegations that he was surrendered before this Court which was also rejected with the directions to the accused to surrender before the competent Court at Dharamshala. Thus, his application for grant of anticipatory bail and regular bail stood rejected. Instead of surrendering before the competent Court at Dharamshala the accused against applied for anticipatory bail concealing therein that there were accusations against him under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act also, nor he specifically mentioned the reason for rejection/direction of his earlier applications and thus concealed material facts in the second anticipatory bail application. By conversion of his second anticipatory bail application into a regular bail application, he was granted bail by a Court at Dharmshala. Such bail was concealed by this Court vide order dated 10.9.2004 passed in Criminal Revision No. 58 of 2004 for the reasons that it was obtained by playing deception and concealing facts from the Court. This speaks volume about the conduct of the accused and his capabilities of manuring(?) or concealing facts, a factor from which it can be readily inferred that if released on bail the accused will leave no stone unturned to destroy the prosecution case by underhand means like tampering with the prosecution evidence. This conclusion ipso facto disentitles the accused for grant of bail whereas this conclusion is further strengthened because of the gravity of the offence and the manner in which it has been committed by the accused. 11. It was contended by the learned Counsel for the accused that the considerations while considering bail pleas under Section 438 and Section 439 are not absolutely identical and since the prosecution has the advantage of having interrogation of the accused, therefore, in the facts and circumstances of the case the accused deserves to be! released on bail and he cannot be kept in confinement as punishment" for his past conduct of misleading the court. 12. While determining the bail applications under Sections 438 and 439 of the Code of Criminal Procedure some different considerations apart from common are involved. But these considerations are not being ignored here by rejecting his applications on the ground that his application for anticipatory bail had been rejected. 12. While determining the bail applications under Sections 438 and 439 of the Code of Criminal Procedure some different considerations apart from common are involved. But these considerations are not being ignored here by rejecting his applications on the ground that his application for anticipatory bail had been rejected. It is also true that if the accused has defrauded a Court and his such act amounts to an offence he is punishable under the relevant penal provisions and cannot be penalized for such act by refusing bail to him. However, the disentitlement of the accused for bail as held herein above is not because he deserves to be punished for playing deception on the Court but for the reasons that it can be readily inferred from his conduct that if released on bail he will tamper with the prosecution evidence and tampering with the prosecution evidence has to be curbed in the interest of fair administration of criminal justice. 13. In view of the above, I do not find the accused entitled for bail. 14. As a result, this petition is dismissed.