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2014 DIGILAW 1333 (HP)

Jagar Singh son of Rodha Ram v. State of H. P.

2014-09-24

P.S.RANA

body2014
JUDGMENT : - P.S. Rana, Judge. Present petition filed under Section 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in connection with case FIR No. 45 of 2014 dated 03.08.2014 registered under Section 354(A) of Indian Penal Code and Section 8 of Protection of Children from Sexual Offences Act 2012 registered in Police Station Nahan District Sirmaur H.P. 2. It is pleaded that applicant is carpenter by profession and is living in village Lalag Tehsil and Police Station Sangrah District Sirmaur H.P. It is pleaded that applicant has been falsely implicated in present criminal case. It is further pleaded that there is considerable delay in minor prosecutrix is related to accused by way of family relations. It is further pleaded that minor prosecutrix is niece of applicant and there are pious relations between the minor prosecutrix and accused. It is further pleaded that there are strained relations between family members of minor prosecutrix and accused on account of property dispute. It is further pleaded that partition suit is pending between the relatives of minor prosecutrix and accused. It is further pleaded that relatives of minor prosecutrix are under the influence of one Bhau Singh son of Shri Bali Ram resident of village Lalag P.O. Barol Tehsil Sangrah District Sirmaur and Bhau Singh remained Pardhan of Gram Panchayat Barol Tehsil Sangrah District Sirmaur during the year 2001-2005. It is further pleaded that during the year 2001-2005 the applicant was the BDC member of Ward Barol Block Sangrah District Sirmaur and it is further pleaded that during the year 2001-2005 Bhau Singh committed financial irregularities and complaint was filed against Bhau Singh at the instance of petitioners by Hiro Devi and Mani Ram and applicant was witness to such complaint. It is further pleaded that on the basis of complaint Bhau Singh was placed under suspension and case against Bhau Singh is still pending in BDO office Sangrah. It is also pleaded that Bhau Singh has enmity against the applicant. It is further pleaded that there was rumour in the village that minor prosecutrix was missing from her house and applicant has also recorded all suspicious calls. It is further pleaded that applicant has also innocence. It is further pleaded that applicant has also handed over audio CD to Ms. Sunita Verma who was probably ASI in police. It is further pleaded that there was rumour in the village that minor prosecutrix was missing from her house and applicant has also recorded all suspicious calls. It is further pleaded that applicant has also innocence. It is further pleaded that applicant has also handed over audio CD to Ms. Sunita Verma who was probably ASI in police. It is further pleaded that Investigating Officer be directed to take into evidence the audio recording of telephonic conversation. It is further pleaded that applicant will not influence the prosecution witnesses and will join the investigation of case. Prayer for acceptance of anticipatory bail application sought. 3. Per contra police report filed. As per police report FIR No. 45 of 2014 dated 3.8.2014 under Section 354A IPC and Section 8 of The Protection of Children from Sexual Offences Act 2012 was registered. There is recital in police report that on dated 11.7.2014 at 7 PM minor prosecutrix went to urinate in the field and immediately accused-applicant came from behind and caught the arm of minor prosecutrix and pushed her. There is further recital in police report that accused told the minor prosecutrix that if she would surrender voluntarily to the sexual desire of applicant then he would not harass the minor prosecutrix. There is further recital in police report that accused further told minor prosecutrix that if she would not voluntarily surrender to the sexual desire of applicant then accused would harass minor prosecutrix in such a manner that minor prosecutrix would not be in a position to face the society. There is further recital in police report that accused pressed the breast of minor prosecutrix and also touched body of minor prosecutrix from top to bottom and also inflicted teeth bite recital in police report that thereafter accused removed salwar of minor prosecutrix and thereafter minor prosecutrix cried in loud voice and on hearing cries of minor prosecutrix maternal grandfather of minor prosecutrix came out. There is further recital in police report that maternal grandfather of minor prosecutrix inquired from accused about his presence. There is further recital in police report that thereafter accused went to residential house and brought his sons namely Roshan Lal and Vijay Singh. There is further recital in police report that accused came with darat (Sharp edged weapon) in his hand. There is further recital in police report that thereafter accused went to residential house and brought his sons namely Roshan Lal and Vijay Singh. There is further recital in police report that accused came with darat (Sharp edged weapon) in his hand. There is further recital in police report that thereafter entire family members of minor prosecutrix came at the place of incident and thereafter accused fled away from the place of incident. There is further recital in police report that thereafter minor prosecutrix and her family members went to the house of Mohan Lal. There is further recital in police report that thereafter Mohan Lal informed the police officials and police officials told to record the complaint on the next day. There is further recital in police report that on the next day minor prosecutrix and her family members came to their residential house and on dated 12.7.2014 applicant/accused saw the minor prosecutrix and told the minor prosecutrix that on the previous day she fled away but on dated 12.7.2014 minor prosecutrix would not be able to flee anywhere. There is further recital in police report that thereafter minor prosecutrix narrated the incident to her maternal grandfather. There is further recital in police report members went to village Mandhoni and thereafter matter was reported to the police at 8 PM. There is further recital in police report that minor prosecutrix and family members could not come to police station due to financial problem and thereafter on dated 13.7.2014 report was lodged in police station. There is further recital in police report that after registration of FIR site plan was prepared and statement of prosecution witnesses recorded under Section 161 Cr.P.C. There is further recital in police report that statement of minor prosecutrix was recorded under Section 164 Cr.P.C. before the Judicial Magistrate, Nahan. There is further recital in police report that age of accused is 48 years and age of minor prosecutrix is 14 years and accused had committed sexual assault upon the minor prosecutrix. Prayer for rejection of anticipatory bail application sought. 4. Court heard learned Advocate appearing on behalf of applicant and Court also heard learned Additional Advocate General appearing on behalf of State. 5. Prayer for rejection of anticipatory bail application sought. 4. Court heard learned Advocate appearing on behalf of applicant and Court also heard learned Additional Advocate General appearing on behalf of State. 5. Submission of learned Advocate appearing on behalf of the applicant that there is considerable delay in lodging the FIR for more than 30 hours and on this ground anticipatory bail application be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. There is recital in police report that FIR could not be recorded promptly due to financial problem. The fact whether delay in lodging the FIR is fatal to the prosecution or not cannot be decided at this stage. The same fact will be prosecution to explain the delay in satisfactory manner during trial of the case. 6. Another submission of learned Advocate appearing on behalf of the applicant that minor prosecutrix is niece of accused and allegation alleged by minor prosecution is mockery of pious relationship and on this ground anticipatory bail application be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Fact whether the complaint filed by minor prosecutrix is false or true cannot be decided at this stage. The same fact will be decided when case shall 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. Till the testimony of prosecutrix is not recorded in Court it cannot be decided whether testimony of prosecutrix is trustworthy or not. The same fact will be decided when testimony of prosecutrix will be recorded by learned trial Court and correctness of testimony of prosecutrix cannot be decided at this stage of the case when case is under initial stage of investigation. 7. Another submission of learned Advocate appearing on behalf of the applicant that there is property dispute between the family members of minor prosecutrix and accused and on this ground anticipatory bail application be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that the fact whether complaint filed by minor prosecutrix is on merits after giving due opportunity to both the parties to lead their evidence in support of their case and same fact cannot be decided during investigation stage of the case. Court is of the opinion that the fact whether complaint filed by minor prosecutrix is on merits after giving due opportunity to both the parties to lead their evidence in support of their case and same fact cannot be decided during investigation stage of the case. Factum of enmity will be decided after trial of case. 8. Another submission of learned Advocate appearing on behalf of the applicant that minor prosecutrix lives in a house next to which a toilet is available but still the prosecutrix claims that she had gone in field to urinate and on this ground anticipatory bail application filed by applicant be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. The fact as to why minor prosecutrix went in the field to urinate cannot be decided at this stage and same fact will be decided when the case shall be disposed of on merits by learned trial Court after giving due opportunity to the minor prosecutrix to explain her conduct when minor will appear in the Court as witness. 9. Another submission of learned Advocate appearing on behalf of the applicant that there is partition suit pending before Tehsildar and family of minor prosecutrix would inherit 1/8th share from the joint ancestral property and applicant/accused would inherit large share in their ancestral property and due to dispute of ancestral property false FIR has been registered and on this ground anticipatory bail application filed by applicant be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. The fact whether FIR has been registered due to enmity cannot be decided at this stage. The same fact will learned trial Court after giving due opportunity to both the parties to lead evidence in support of their case. 10. Another submission of learned Advocate appearing on behalf of the applicant that mother of minor prosecutrix stayed with three different persons and minor prosecutrix did not stay with her father and stays with her mother and on this ground anticipatory bail application be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that crucial point which is involved in present case is whether accused had committed criminal offence as alleged in FIR or not. Court is of the opinion that crucial point which is involved in present case is whether accused had committed criminal offence as alleged in FIR or not. Same fact would be decided by learned trial Court during trial of the case and it is not expedient in the ends of justice to give any opinion in bail proceedings upon the merits of the case. 11. Another submission of learned Advocate appearing on behalf of the applicant that present criminal case has been registered at the instance of Bhau Singh son of Shri Bali Ram who had strained relations with accused/applicant because accused/applicant was a witness in criminal complaint filed by Hiro Devi and Mani Ram against Bhau Singh and on this ground anticipatory bail application be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that the fact whether FIR against the applicant is registered at the instance of Bhau Singh or not cannot be case shall be disposed of on merits by learned trial Court. 12. Another submission of learned Advocate appearing on behalf of the applicant that applicant has got audio recording transferred in CD and on this ground anticipatory bail application be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. (1) It is well settled law that Electronic document must be supported by certificate by an official holding a responsible position certifying its authenticity. (2) It is well settled law that electronic document should explain the manner in which electronic record was produced. (3) Electronic record should be produced from computer regularly used by the person having lawful control over it. It is well settled law that any electronic record by way of secondary evidence should not be admitted in evidence unless requirements of Section 65-B of Indian Evidence Act 1872 are satisfied. Authenticity of audio CD conversation will be scrutinized by learned trial Court during trial of the case. It is well settled law that at the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh are very heinous and grave in nature. Allegations against the applicant are that applicant/accused caught arms of minor prosecutrix and pushed the minor prosecutrix and thereafter pressed her breast and thereafter touched the body of minor prosecutrix from top to bottom and thereafter inflicted teeth injury upon the cheeks of minor prosecutrix and thereafter removed the salwar of minor prosecutrix. Above stated overt act allegations against the applicant/accused are very grievous and heinous in nature. Applicant has been charged under Section 8 of The Protection of Children from Sexual Offences Act 2012 for sexual assault upon the minor prosecutrix. Allegations of sexual assault are increasing in the society day by day. As per Ruling of Hon’ble Apex Court of India, Court should be sensitive in sexual assault cases. As per Section 30 of the Protection of Children from Sexual Offences Act 2012 there is presumption of culpable mental state and onus is upon the accused to prove that he had no such mental state. The fact whether accused had no such mental state or not cannot be decided at this stage. The same fact will be decided on merits after giving due opportunity to both the parties to lead evidence in support of their case. As per Section 42-A of Protection of Children from Sexual Offences Act 2012 provisions of POCSO Act shall have overriding effect on the provisions of other law to the extent of inconsistency. 13. Another submission of learned Advocate appearing on behalf of the applicant that sexual assault has from Sexual Offences Act 2012 and as per Section 7 of the Protection of Children from Sexual Offences Act 2012 sexual intent to touch the naked vagina, naked penis, naked anus or naked breast of the child is essential in order to frame charge against the accused is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused Sections 7 and 8 of Protection of Children from Sexual Offences Act 2012. Court is of the opinion that there is no recital in Section 7 of POCSO Act that touches with sexual intent should be to the naked vagina, naked penis, naked anus or naked breast of the child. Court is of the opinion that even touches to the vagina, penis, anus or breast of the minor child when minor child has worn clothes is sufficient to attract Sections 7 and 8 of the Protection of Children from Sexual Offences Act 2012. The word naked is missing in Section 7 of Protection of Children from Sexual Offences Act 2012 and it is well settled law that Protection of Children from Sexual Offences Act 2012 is a special Act enacted for protection of minors children and it is well settled law that Court is the guardian of minors and it is also well settled law that when two interpretations are possible then interpretation favourable to the minors should be adopted by Court in the ends of justice. 14. In view of above stated facts Court is of the opinion that custodial interrogation of accused/applicant is essential in present case for proper investigation and it is held that it is not expedient in the ends of justice to release application filed by applicant is rejected. Observations made in this order will not effect the merits of case in any manner and will strictly confine to the disposal of this bail application filed under Section 438 of Code of Criminal Procedure 1973. Petition stands disposed of including all pending miscellaneous application(s) if any.