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Himachal Pradesh High Court · body

2004 DIGILAW 45 (HP)

BABA SOHAN GIRI v. STATE OF H. P.

2004-03-17

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure has been filed by the accused-petitioner (hereafter referred to as the accused) in case FIR No. 8/2004 dated 20.1.2004, under Sections 376 and 506 of the Indian Penal Code, registered at Police Station, Bharmour. 2. Case of the prosecution in brief is that the prosecutrix is a resident of village Bari, District Chamba and was born in a Pujari family of the village temple of Mahadev. About 12 years before the accused started living in the said temple and within a few days when the prosecutrix was 15-16 years of age he cast such a spell on her 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 arid within a month thereof he died. Thereafter, all her near relatives died one after the other. Attempts made by the prosecutrix to get rid of the accused resulted in his hurling abuses 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 but there were abortions thrice. She was always in 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 they used to blackmail her. Last year a boy came to the temple who used to treat the prosecutrix as his mother because he was under the impression that Mata Gauri speaks through the prosecutrix. When that boy wanted to know about the prosecutrix she did not disclose anything 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. The said boy once took the prosecutrix to his house where she divulged everything to him. The accused also used to impress her that they could not harm him because he was a Sidh. The said boy once took the prosecutrix to his house where she divulged everything to him. When the accused came to know about it, he threatened the prosecutrix to be killed. The matter was finally reported to the police. As per the police report, the matter is still under investigation and the accused is required to be interrogated. It is also claimed that in the event of his release on bail the accused can threaten the prosecution witnesses. 3. The bail has been applied for by the accused on the grounds that he is a saint and is residing in the aforesaid village in Chopanth Mahadev temple for the last more than 12 years. The prosecutrix used to do cooking and other household work in the hut of the accused when he used to be busy in meditation. However, she came in contact with Rajesh Pathania of Khandwa who is a criminal by nature and when the accused had to go to Khandwa the prosecutrix hatched a conspiracy in connivance with said Rajesh Pathania to falsely implicate the accused in the case and to grab his belongings. When he came to know at Khandwa about the lodging of the report he filed this application for grant of bail. 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 the prosecutrix at present is, admittedly, about 31 years of age and about 12 years before when she came in contact with the accused she was not less than 19 years of age and that the case has been got registered by her in connivance with Rajesh Pathania with a view to grab the property of the accused. Whereas, he is a reputed saint and is innocent. 6. A perusal of the record no doubt reveals that at the time when the prosecutrix came in contact with the accused for the first time she was about 19 years of age as her present age is about 31 years. However, mere age is not a deciding factor in a case of rape. 6. A perusal of the record no doubt reveals that at the time when the prosecutrix came in contact with the accused for the first time she was about 19 years of age as her present age is about 31 years. However, mere age is not a deciding factor in a case of rape. What is essential to constitute an offence of rape, in case of a woman of more than 16 years of age, is sexual intercourse with such woman without her consent and against her will. Therefore, the bare fact that the prosecutrix came in contact with the accused when she was about 19 years of age by itself does not absolve the accused of the charge of rape if she was subjected to sexual intercourse against her will and without her consent. 7. At present there is nothing on record which may create suspicion about the trustworthiness of the version given by the prosecutrix. She is not stated to be an educated woman but is admittedly daughter of a Pujari who believes more in supernatural things than the hard realities of the world. In a society consisting of illiterate or semi literate people a saint is nothing short of God. For them he is all powerful, capable of doing anything whatever he likes. According to their belief, he can give life to a dead person and can take life of a living human being by virtue of his Sidhis which the accused proclaimed to have acquired by virtue of meditation etc. The deaths of the near relations of the prosecutrix one after the other, after she came in contact with the accused prima facie were capable of demoralizing her and depriving her of rational thinking, and conclusions. Deaths of four children and abortions may be other factors capable of detering the prosecutrix from exposing the accused. Therefore, in the given circumstances, the age factor and the delay in bringing the matter to the notice of the concerned authorities can at this stage not be taken as grounds in support of the contention raised for the accused. Prima facie, the delay in lodging the FIR stands explained and it is prima facie shown that the acts of sex by the accused with the prosecutrix were without her consent and against her will. Prima facie, the delay in lodging the FIR stands explained and it is prima facie shown that the acts of sex by the accused with the prosecutrix were without her consent and against her will. Thus, as per the material on record a case requiring thorough investigation is made out against the accused and^ evidently the case is of grave nature for which law provides severe punishment. These factors must weigh against the grant of anticipatory bail to the accused. 8. It may also be pointed out here that the very purpose of grant of anticipatory bail is to protect innocent persons from indignities of arrest and confinement and not to stall investigation in a serious crime where most of the things can come to light only after custodial interrogation of the person accused of the commission of such offences. In the facts and circumstances of the case, as alleged by the prosecutrix, it is definitely a case for custodial interrogation of the accused. 9. It is claim of the accused himself that he is highly respected saint of the concerned Illaqua. His sainthood by itself is sufficient to deter people from making incriminating statements against him and this conclusion is further strengthened from the averments made in the FIR that despite knowing about the plight of the prosecutrix none from the whole of the Illaqua came forward to help her. Thus, the accused is capable of winning over the prosecution witnesses because of the awe he has created amongst the masses because of his being a saint. This conclusion is further strengthened by the fact that despite complaints by the prosecutrix to various authorities the law did not came into motion at once, though various authorities directed investigation in the case. There was definitely something in between which prevented even the police to act as swiftly as expected. In these circumstances, the accused is not entitled for grant of bail prayed for. 10. As a result this application merits dismissal and is accordingly dismissed. 11. Before parting, it may be pointed out that as per the investigation records a copy of the complaint dated 4.1.2004 made by the prosecutrix to various authorities was received in the Office of the Superintendent of Police, Kangra on 7.1.2004 and on the same day he directed that the complaint be sent to Superintendent of Police, Chamba. 11. Before parting, it may be pointed out that as per the investigation records a copy of the complaint dated 4.1.2004 made by the prosecutrix to various authorities was received in the Office of the Superintendent of Police, Kangra on 7.1.2004 and on the same day he directed that the complaint be sent to Superintendent of Police, Chamba. The Office of the Superintendent of Police, Kangra took 10 days to send the complaint to the concerned quarter and forwarded it to......Superintendent of Police, Chamba with the covering letter dated 17.1.2004. Which is evidently an official act discharged in a lack-luster manner. The original complaint dated 4.1.2004 addressed by the prosecutrix to Superintendent of Police, Chamba was received in his Office on 6.1.2004 and on the same day he sent the complaint to SHO, Bharmour for necessary action. The contents of the complaint disclosed a cognizable offence under Section 376 of the Indian Penal Code and other allied offences but no action appears to have been taken by the concerned SHO, who was duty bound to record the FIR and start investigation immediately on receipt of the complaint with the aforesaid endorsement of the Superintendent of Police, Chamba. The non-registration of the case on the basis of the complaint forwarded to the SHO by the Superintendent of Police for necessary action is sought to be explained on the ground that the matter required some inquiry before registration of the case. When the investigating agency was called upon to produce the record of inquiry, which might have been conducted by it, it was plainly conceded that it does not have such records. Another similar complaint addressed to the DIG, Dharamshala, dated 4.1.2004 appears to have been received in his office on 6.1.2004 and appears to have been sent to the Superintendent of Police, Chamba on 8.1.2004. This complaint was also endorsed by Superintendent of Police, Chamba to SHO, Police Station Bharmour vide endorsement dated 13.1.2004. It appears that this complaint also did not yield any result. Finally, it is on an undated endorsement of some DSP that the Bharmour police thought it proper to register a case on 20.1.2004. No explanation is forthcoming as to what action the Bharmour Police took on the directions issued by the DIG, Dharamshala and Superintendent of Police, Chamba and what led the police to register a case only on the directions of DSP after considerable delay. No explanation is forthcoming as to what action the Bharmour Police took on the directions issued by the DIG, Dharamshala and Superintendent of Police, Chamba and what led the police to register a case only on the directions of DSP after considerable delay. 12. Another feature of the case is that the investigating agency itself had placed on record some material suggestive of the fact that after the prosecutrix had lodged the complaint against the accused, some of the disciples of the accused tried to kidnap the prosecutrix. On query by this Court it has plainly been admitted for the investigating agency that no attempt has been made by the police to verify whether there was any attempt to kidnap the prosecutrix by the disciples of the accused. Having come in possession of such material, it was the legal duty of the Investigating Officer to look into these aspects of the matter immediately on collecting such material which was done in January, 2004. These facts and circumstances raise serious doubts about the fair investigation of the case and such a state of affairs if permitted to continue will lead to subversion of the fair administration of criminal justice. It is, therefore, ordered that further investigation in the case henceforth shall be entrusted to a police officer not below the rank of a Deputy Superintendent of Police. A copy of this order be sent to the Director General of Police, Himachal Pradesh through the learned Advocate General, Himachal Pradesh forthwith, for compliance of the aforesaid orders by nominating a police official of the rank of Deputy Superintendent of Police to undertake further investigation in the case. -