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2014 DIGILAW 1334 (HP)

Anil Kumar v. State of H. P.

2014-09-24

P.S.RANA

body2014
JUDGMENT : - P.S. Rana, J. Present bail application filed under Section 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in FIR No. 193/14 registered on 14.9.2014 at Police Station Ghumarwin, Tehsil Ghumarwin, District Bilaspur under Section 376, 354-A, 406, 506 IPC. 2. It is pleaded that applicant is innocent and the applicant has been falsely implicated in the case. It is further pleaded that any condition imposed by the Court will be binding upon the applicant. It is further pleaded that investigation is complete and custodial interrogation of the applicant is not required. It is further pleaded that the age of the prosecutrix is 35 years and prosecutrix is married woman and is having a known to each other for more than one year. It is further pleaded that allegations for taking Rs. 15,00,000/- (Rupees Fifteen Lacs) and commission of rape are false and prayer for acceptance of the bail application sought. 3. Per contra police report filed. As per police report FIR No. 193/14 dated 14.9.2014 was registered under Section 376, 354A (1), 406 and 506 IPC registered in Police Station Ghumarwin, District Bilspur, H.P. There is recital in the police report that prosecutrix was married with Sh. Rajesh Kumar resident of Adilabad Andhra Pradesh. There is further recital in the police report that prosecutrix has one son aged 7 years. There is further recital in the police report that applicant brought the prosecutrix to Ghumarwin on the pretext that he would marry the prosecutrix. There is further recital in the police report that prosecutrix resided in the house of applicant for three months. There is further recital in the police report that prosecutrix also sold her vehicle and plot and earned Rs. 15,00,000/- (Rupees Fifteen Lacs). There is further recital in police report that Rupees Fifteen lacs earned from sale of vehicle and plot by prosecutrix handed over to applicant for preparation of FDR in favour of minor son of prosecutrix. There is further recital in the police report that applicant told the prosecutrix that he would prepare FD of Rs. 15,00,000/-(Rupees Fifteen Lacs) in the name of son of the prosecutrix. There is further recital in the police report that when from the applicant then applicant told prosecutrix that he had spent Rs. 15,00,000/- (Rupees Fifteen Lacs) for his personal use. 15,00,000/-(Rupees Fifteen Lacs) in the name of son of the prosecutrix. There is further recital in the police report that when from the applicant then applicant told prosecutrix that he had spent Rs. 15,00,000/- (Rupees Fifteen Lacs) for his personal use. There is further recital in the police report that applicant did not prepare the FD in favour of son of the prosecutrix. There is further recital in the police that on 11.9.2014 applicant entered into the residential house of the prosecutrix and forcibly committed rape upon her. After registration of the case site plan was prepared and videography of the spot was also conducted and bed sheet and torn shirt of the prosecutrix also took into possession vide seizure memo. There is further recital in police report that intensive investigation is required qua fifteen lacs of amount from accused. 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 non-applicant and also perused the entire record carefully. 5. Submission of learned Advocate appearing on behalf of the applicant that applicant is innocent and did not commit any offence cannot be decided at this stage. Same fact will be decided when case will be decided on merits by the learned trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case. 6. Another submission of learned Advocate appearing on behalf of the applicant that applicant will abide any condition application be allowed is rejected being devoid of merit for the reason hereinafter mentioned. Following factors are to be considered while granting the bail: (i) Nature and seriousness of offence; (ii) Character and behavior 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 interest of the public and State. (See AIR 1978 Apex Court 179 DB, titled Gurcharan Singh vs. State and also see 1962 Apex Court 253 Full Bench titled State Vs. Captain Jagjit Singh). In the present case allegations have been leveled against the applicant that the applicant committed offence under Section 376, 354 A(1), 406 and 506 IPC. (See AIR 1978 Apex Court 179 DB, titled Gurcharan Singh vs. State and also see 1962 Apex Court 253 Full Bench titled State Vs. Captain Jagjit Singh). In the present case allegations have been leveled against the applicant that the applicant committed offence under Section 376, 354 A(1), 406 and 506 IPC. Offences of rape are increasing in the society day by day and offence of rape is stigma upon the society. It is well settled law that Court should be sensitive while dealing with sexual molestation cases. Allegation against the applicant is that on 11.9.2014 applicant forcibly entered into the residential house of the prosecutrix and committed rape upon her and further allegation against the applicant is that applicant brought the prosecutrix from Adilabad Andhra Pradesh on the pretext that he would marry her and allegation against the applicant is that applicant committed criminal breach of trust qua Rs. 15,00,000/- (Rupees Fifteen Lacs) owned by the prosecutrix nature. Section 114 (A) of Indian Evidence Act 1872 was incorporated w.e.f. 3.2.2013. As per Section 114 (A) the Court shall presume that prosecutrix did not consent the sexual intercourse when prosecutrix states in the Court that she did not consent the sexual intercourse. Whether offence of rape was committed or not cannot be decided at this stage and the same fact will be decided by the learned trial Court when the testimony of the prosecutrix will be recorded. Court is of the opinion that it is not expedient in the interest of justice to release the applicant on bail till the testimony of the prosecutrix is not recorded during trial of case. Court is also of the opinion that if the applicant is released on bail then the interest of the State and general public will be adversely affected because investigation is initial stage of case. It is held that custodial investigation of the applicant is essential in the present case in order to recover rupees fifteen lacs from applicant. 7. In view of the above stated facts anticipatory bail application is rejected. My observation made hereinabove is strictly for the purpose of deciding the present bail application filed under Section 438 Cr.P.C. and will not affect merits of the case in any manner. All pending application(s) if any are also disposed of.