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2014 DIGILAW 1353 (HP)

Mohit Saini v. State of Himachal Pradesh

2014-09-25

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The instant bail application has been filed under Section 438, Cr. P.C. by the bail applicant. He apprehends his arrest for his having allegedly committed offences under Sections 376, 504 and 506 of I.P.C., in pursuance to the lodging of FIR bearing No. 98/14 of 17.08.2014 at Police Station Sadar Nahan, District Sirmaur, H.P. 2. Previously numerous opportunities were afforded to the Investigating Officer to complete the investigation. Today, the Investigating Officer has disclosed to this Court that certain recoveries, inasmuch as, a cheque, an affidavit, besides three mobile phones remain unrecovered at the instance of the bail applicant. The lack of effectuation of recoveries aforesaid, if any, at the instance of the bail applicant, would not deter this Court to proceed to adjudicate this bail application as in the event of the bail applicant/accused misutilising any of the aforesaid items, it is open to the complainant to launch separate criminal proceedings against the bail applicant. 3. At this stage, the Investigating Officer, SI Vivek Sharma, Police Station Sadar Nahan, has apprised this Court that except the receipt of the report of the FSL, the entire investigation into the offences allegedly committed by the bail applicant stands concluded. However, at this stage, while prima facie, imputing credibility to the allegations leveled by the prosecutrix against the bail applicant and their’s divulging the fact of the bail applicant/accused having subjected the prosecutrix to forcible sexual intercourse, hence this Court does not deem it fit, that awaiting the report of the FSL, a decision by this Court on the bail application, be deferred. 4. Now, the pre-eminent fact which necessitates adjudication is whether as alleged by the prosecutrix, the bail applicant/accused subjected her to forcible sexual intercourse or not. 4. Now, the pre-eminent fact which necessitates adjudication is whether as alleged by the prosecutrix, the bail applicant/accused subjected her to forcible sexual intercourse or not. The fact of the prosecutrix being a widow aged 35 years and having a child aged 14 years, as also when portrayed to be running the business of a Beauty Parlour acquire significance in testing whether the alleged forcible sexual intercourse perpetrated on her person by the bail applicant was consensual or compulsive or whether as a matter of fact, the victim prosecutrix, as alleged by her succumbed to the sexual overtures of the bail applicant under a false pretext or a false promise to marry her, or also whether such coaxing or allurements meted by the bail applicant to her to make her succumb to his sexual overtures, hence constitute an offence. The duration of the sexual intercourse inter se the bail applicant/accused and the victim is also significant, inasmuch as, both the bail applicant and the victim prosecutrix had for an inordinately prolonged duration stretching over a period of 1 and ½ years continued to indulge in repeated sexual intercourses, besides both have been divulged by the Investigating Officer to have had sexual intercourse both at the house of the victim prosecutrix as well as, elsewhere. Cumulatively given the fact of the sexual intercourses inter se the bail applicant and the victim prosecutrix stretching over a period of more than 1 and ½ years., prior to which the victim prosecutrix omitted to complain either to her relatives or to the police qua the factum of the accused bail applicant subjecting her to forcible sexual intercourse, both significantly and overwhelmingly unbare the factum of the alleged pretextual sexual intercourse perpetrated upon the person of the victim by the bail applicant/accused, of its vestment of compulsiveness and pretextuality, as also, strips off the effect of the falsity of the initial promise of marriage meted by the bail applicant to the victim and its begetting capitulation of the victim. In other words, the duration of the sexual intercourse inter se both, also deprive the factum of the initial promise of marriage, if any, meted by the bail applicant/accused to the victim/prosecutrix which purportedly seduced or allured her to succumb to the purported sexual intercourses perpetrated on her person by the bail applicant/accused, from acquiring any tinge of pretextuality, rather the effect of any pretextuality or allurement meted by the bail applicant to the victim for subjugating her to his sexual desires gets waned, smothered as well as condoned, by the subsequent repeated succumbing of the victim prosecutrix, to the sexual overtures of the bail applicant, both at her house and elsewhere. 5. In other words, assuming that the initially perpetrated sexual intercourse inter se the bail applicant/accused and the victim was under an allurement meted by the accused/bail applicant to marry her, from which he ultimately reneged, yet the further factum of the victim aged 35 years and also disclosed to be running the business of a Beauty Parlour at Nahan, hence empowered with concomitant intelligibility to fathom at the initial stage the falseness of the pretext or of the allurement of marriage meted by the bail applicant to her, she having continued to prolong her sexual intercourse with the accused as also having continued to succumb to the sexual overtures of the accused, renders open no other inference than that of the initial sexual intercourse though, may be under a false pretext, its effect having come to be overcome as well as waned. Consequently, prima facie, at this stage, this Court is of the view that these allegations do not constitute any offence. 6. Accordingly, the petition is allowed and the order of 20.08.2014, rendered by this Court is made absolute, subject to the compliance by the applicant with the following conditions: (i) that the bail applicant shall join the investigation as and when required by the Investigating Agency; (ii) that the bail applicant shall nor directly or indirectly advance any threat, inducement or promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence; and (iii) that the bail applicant shall not leave India without prior approval of this Court and is also directed to deposit his passport, if any, with the Station House Officer concerned. 7. In view of the above, the petition stands disposed of. 7. In view of the above, the petition stands disposed of. However, it is made clear that the findings recorded hereinabove shall not have any bearing on the merits of the case.