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Himachal Pradesh High Court · body

2014 DIGILAW 1165 (HP)

Jasbir Singh v. State of H. P.

2014-08-29

P.S.RANA

body2014
JUDGMENT P.S. Rana, Judge. Order:-This order will dispose of petition filed under Section 439 of Code of Criminal Procedure. It is pleaded that applicant is innocent and he has been falsely implicated in present case. It is further pleaded that applicant will join the investigation of case whenever and wherever directed by the Court and it is further pleaded that applicant will not tamper with prosecution evidence. Prayer for acceptance of bail application is sought. 2. Per contra police report filed. As per police report case FIR No. 86 of 2014 dated 2.3.2014 was registered against the applicant under Sections 376 and 417 of IPC and 3(2) v of Scheduled Caste and Scheduled Tribe Atrocity Act. There is recital in police report that on dated 2.3.2014 prosecutrix came along with her mother and filed criminal complaint. There is further recital in police report that prosecutrix is student of B. Pharmacy Final year 8th Semester in Himachal Institute of Pharmacy Rampurghat. There is further recital in police report that applicant/accused was residing as tenant since 3½ years in residential house of parents of prosecutrix. There is further recital in police report that accused/applicant had developed illicit relations with prosecutrix since two years. There is further recital in police report that last year on the day of Holi parents of applicant/accused came at Devinagar and engagement ceremony performed. There is further recital in police report that on dated 13.4.2013 marriage was to be finally settled. There is further recital in police report that when mother of prosecutrix inquired from parents of applicant through phone about final marriage settlement then parents of applicant informed that they would marry the applicant somewhere else. There is further recital in police report that parents of applicant told that they would not marry the prosecutrix because prosecutrix belongs to Scheduled caste. There is further recital in police report that parents of prosecutrix called parents of applicant on dated 25.10.2013 at Poanta Sahib. There is further recital in police report that on dated 25.10.2013 applicant performed last sexual intercourse with prosecutrix. There is further recital in police report that thereafter parents of applicant came and refused to marry. There is further recital in police report that parents of applicant have settled marriage of applicant somewhere else. There is further recital in police report that the prosecutrix was medically examined and site plan was prepared and photographs obtained. There is further recital in police report that thereafter parents of applicant came and refused to marry. There is further recital in police report that parents of applicant have settled marriage of applicant somewhere else. There is further recital in police report that the prosecutrix was medically examined and site plan was prepared and photographs obtained. There is also recital in police report that statement of prosecutrix was also recorded before Judicial Magistrate 1st Class Poanta Sahib under Section 154 Cr.P.C. There is further recital in police report that during investigation it was observed that applicant was residing as tenant since 3½ years in residential house of parents of prosecutrix and there is further recital in police report that applicant has developed illicit relations with prosecutrix on the pretext that he would marry the prosecutrix. There is further recital in police report that challan has been filed in Court of Sessions Judge Nahan District Sirmaur. 3. Court heard learned Advocate appearing on behalf of the applicant and learned Additional Advocate General appearing on behalf of the State and also perused the record carefully. 4. Submission of learned Advocate appearing on behalf of the applicant that applicant is innocent and applicant has not committed any offence cannot be decided at this stage same fact will be decided when matter will be disposed of on merits by learned trial Court after giving due opportunity to both the parties to lead evidence in support of their case. 5. Submission of learned Advocate appearing on behalf of the applicant that any condition imposed by Court will be binding on applicant and on this ground bail be granted to the applicant is rejected being devoid of any force for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of the offence. (ii) Character and behaviour of accused. (iii) Circumstances peculiar to the accused. (iv) Reasonable possibility of securing the presence of the accused at the trial and investigation. (v) Reasonable apprehension of the witnesses being tampered with. (vi) Larger interests of the public and state. (See AIR 1978 Apex Court 179 DB, titled Gurcharan Singh vs. State and also see 1962 Apex Court 253 Fu Bench titled State Vs. (iv) Reasonable possibility of securing the presence of the accused at the trial and investigation. (v) Reasonable apprehension of the witnesses being tampered with. (vi) Larger interests of the public and state. (See AIR 1978 Apex Court 179 DB, titled Gurcharan Singh vs. State and also see 1962 Apex Court 253 Fu Bench titled State Vs. Captain Jagjit Singh).In present case allegations against the applicant are very grave and heinous in nature qua criminal offence punishable under Sections 376 and 417 IPC and 3(2) v of Scheduled Caste and Scheduled Tribe Atrocity Act. In view of gravity of offence it is not expedient in the ends of justice to release the applicant on bail. Court is of the opinion that if applicant is released on bail at this stage then interest of State and general public will be adversely effected. It is well settled law that offence of rape is offence against the society and it is also well settled law that murder destroys the body of victim but rapist degrades the soul of female. 6. Submission of learned Advocate appearing on behalf of the applicant that in view of Rulings reported in (2013)9 SCC113 titled Kaini Rajan vs. State of Kerala, 2013 (4) RCR (Criminal) 1022 titled State vs. Saurabh Vashist decided on 13.8.2013, 2011 (5) RCR (Criminal) 584 titled Ashwani Kumar vs. State of H.P. and 2004(2) CLJ (HP) 595 titled Mohan Singh vs. State of H.P. applicant be released on bail is rejected being devoid of any force for the reasons hereinafter mentioned. The facts of above stated cases and facts of present case are entirely different. Court is of the opinion that the fact whether consent of prosecutrix was obtained voluntarily or by way of misrepresentation of facts cannot be decided at this stage same fact will be decided when testimony of prosecutrix will be recorded. It is well settled law that consent obtained under misconception of facts is not valid consent under law. The fact whether prosecutrix voluntarily consented for sexual intercourse or not will be decided after recording testimony of prosecutrix. On 03.02.2013 new Section 114(A) of Indian Evidence Act 1872 was added qua rape cases and as per Section 114(A) of Indian Evidence Act there is presumption as to absence of consent in rape cases when prosecutrix states before the Court that she did not consent sexual intercourse. On 03.02.2013 new Section 114(A) of Indian Evidence Act 1872 was added qua rape cases and as per Section 114(A) of Indian Evidence Act there is presumption as to absence of consent in rape cases when prosecutrix states before the Court that she did not consent sexual intercourse. The Rulings cited by learned counsel appearing on behalf of applicant are relating to FIR’s registered prior to enforcement of Section 114(A) of Indian Evidence Act 1872 and are not relating to FIR registered after 03.02.2013 qua rape cases. Present FIR No. 86/2014 is registered on dated 02.03.2014 and Section 114(A) of Indian Evidence Act 1872 is operative upon present criminal case registered qua rape case. As applicant is resident of Haryana there is apprehension in the mind of Court that if applicant is released on bail at this stage then applicant will hamper the trial of case. There is also apprehension in the mind of Court that if the applicant is released on bail then applicant will threat and induce prosecution witnesses. Court is of the opinion that it is not expedient in the ends of justice to release the applicant on bail till testimony of prosecutrix is not recorded in present case. 7. In view of above stated facts bail application filed by applicant under Section 439 of Code of Criminal Procedure 1973 is rejected. Observations made in this order will not effect the merits of case in any manner and will strictly confine to the dispose of this bail application filed under Section 439 of Code of Criminal Procedure 1973. However learned trial Court will dispose of the case expeditiously keeping in view the fact that applicant is in judicial custody. Petition stands disposed of.