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2004 DIGILAW 325 (HP)

RAJEEV KUMAR v. STATE OF H. P.

2004-12-07

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 Sections 376, IPC and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station, Dharamshala. 2. Case of the prosecution in brief is that the prosecutrix is a resident of Kuppa in Tehsil Pangi and belongs to Scheduled Tribes. She was born on September 10, 1972. She came to Dharamshala in the year 1996 to acquire higher education and used to reside in a Women Hostel. The accused and prosecutrix were introduced to each other by one Anu in the month of December, 1997 at Dhauladhar Hotel, Dharmmshala. 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 on 1999 and went for DP.Ed. Court 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 Jawalaji, Jogindernagar, Shimla, Kullu, Mcleod Ganj, Palampur and Hamirpur, where he had been staying with the prosecutrix claiming her to be his wife. Once he took 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 for seven years, during which he preganted her twice and got her aborted twice. When the prosecutrix insisted for marriage, he refused to marry her. Hence, the FIR. The charge-sheet, in the case has already been presented and the accused is facing trial in the case. The accused thus exploited the prosecutrix physically for seven years, during which he preganted her twice and got her aborted twice. When the prosecutrix insisted for marriage, he refused to marry her. Hence, the FIR. The charge-sheet, in the case has already been presented and the accused is facing trial in the case. The accused had earlier moved Cr.MP(M) No. 1105/2004 for grant of bail to him, which was dismissed by this Court by a speaking order on 2.11.2004. The present application, apart from the grounds on which earlier application had been moved, has been filed on the grounds that after the registration of the FIR on 29.2.2004 the prosecutrix, in addition to the various letters addressed by her to the accused during pre-FIR period, on 27.3.2004 addressed another letter expressing her great love to the accused and that no useful purpose is going to be served by incarceration of the accused. 3. I have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent-State and have also gone through the police report and the order earlier passed by this court on 2.11.2004 dismissing the earlier bail application of the accused on merits. 4. It was urged by the learned Counsel for the accused that the prosecutrix had written a letter to the accused even after the registration of the FIR and had earlier given her photographs and various letters to the accused which disclose that she was a consenting party to the act of sexual relations between them. It was also contended that the prosecutrix had after the arrest of the accused gone to meet him twice at the place of his custody though because of the influence of the relations of the prosecutrix no record thereof was maintained in the jail. The learned Counsel has also produced said original letter for perusal, whereas photocopy thereof has been filed with the application. The precise submission of the learned Counsel is that because of the love relations between the accused and the prosecutrix, the consent of the prosecutrix to have such relations with the accused can be readily inferred and she being now 30 years of age it cannot be said that it is a case of rape, therefore, the accused who has no past criminal history deserves to be released on bail. 5. 5. In fact, the spirit of the aforesaid submissions is the same as those of the contentions raised for the accused at the hearing of the earlier bail petition moved by the accused i.e. Cr. M.P. (M) No. 1105/2004. In the order on the said application, after looking into the facts of the prosecution case this court has prima facie concluded for the purpose of grant of denial of bail to the accused that undoubtedly as and when the accused had sexual intercourse with the prosecutrix, she submitted to the desire of the accused without any protest. However, it was further observed that such submission by the prosecutrix was because of her faith that the accused had accepted her as his wife by putting Sindoor in her Maang at a scared and holy place and he had been occasionally residing with her at different places claiming her to be his wife. In these circumstances, the submission of the prosecutrix to sexual intercourse with the accused cannot be said free and voluntary but because of the tricks of applying Sindoor to her Maang and proclaiming her as; wife by the accused whenever he used to take her with him. It was, thus, concluded that it is a case of rape for which the accused is now facing trial. 6. There is nothing on the record to substantiate the allegation that the prosecutrix had twice visited the accused in the jail. Apparently, there is no reason for her doing so. Even the letter sent by the prosecutrix to the accused allegedly after the registration of the FIR cannot be taken into account at this stage in defence of the accused as prima facie it does not appear to have been sent to the accused by the prosecutrix after the registration of the case because figure 4 of the year of the date of the letter appears to have been interpolated. Thus, in fact the accused has no fresh ground to make this application once his earlier application stood dismissed oh merits. 7. It is a matter of record that at one point of time the accused was found to have secured the bail by playing deception on and concealing the facts from the Court which speaks volumes about the j conduct of the accused and his capabilities of maneuvering or concealing facts. 7. It is a matter of record that at one point of time the accused was found to have secured the bail by playing deception on and concealing the facts from the Court which speaks volumes about the j conduct of the accused and his capabilities of maneuvering or concealing facts. As already held while dismissing the earlier application it can be Teadily inferred from the said conduct of the accused and also from the doubtful nature of the pleas, that the prosecutrix had gone to see the accused in the jail twice or she has written a letter to the accused after the registration of the case, that he is capable of maneuvering and concealing the facts and if released on bail will not leave any stone unturned to destroy the prosecution case by underhand means like tampering with the prosecution evidence and creating false evidence. 8. In these circumstances, the accused is not entitled to be released on bail. 9. The learned Counsel for the accused has lastly submitted that liberty may be reserved to the accused to make appropriate bail application before the appropriate Court if so warranted after the recording of the statement job the prosecutrix by the trial Court. The accused in a case has the right to make fresh bail application in view of the future events and fresh circumstances and for exercise of such a right leave of the Court is not required. 10. As a result, this petition is dismissed.