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Himachal Pradesh High Court · body

2014 DIGILAW 1895 (HP)

Sachin S/o Partap Singh v. State of H. P.

2014-12-12

P.S.RANA

body2014
JUDGMENT : P.S. RANA, J. 1. All bail applications have been filed qua FIR No. 19 of 2014 dated 21.1.2014 registered under Sections 363, 342, 376D, 323, 201 and 511 IPC and Sections 6 and 17 of the Protection of Children from Sexual Offences Act 2012. All bail applications are consolidated and disposed of by same order in order to avoid repetition. 2. It is pleaded that applicants are innocent and they have been falsely implicated in present case. It is further pleaded that investigation of the case is complete and charge sheet has been filed in the month of March 2014 and it is further pleaded that no recovery is to be effected from the applicants. It is also pleaded that both FIRs No. 23 of 2014 dated 20.01.2014 and 19 of 2014 dated 21.01.2014 are contradictory to each other. It is further pleaded that as per FIR No. 23 of 2014 occurrence took place at Hotel Monal Mandi and as per FIR No. 19 occurrence took place in the house of prosecutrix at Dharampur which is approximately at a distance of 90 Kms. and hence prosecution story did not inspire any confidence. It is further pleaded that statement of complainant was recorded on 28.1.2014 wherein complainant stated before learned Magistrate that except co-accused Ravi all four accused have committed rape upon her in the intervening night of 17.1.2014 while fifth co-accused Ravi attempted to commit rape with other prosecutrix. It is pleaded that on contrary as per statement of other prosecutrix recorded under Section 164 Cr.P.C. before learned Magistrate co-accused Beer committed rape with other prosecutrix and she did not name any other co-accused involved in the criminal offence. It is pleaded that even other prosecutrix has not stated anything qua attempt of rape with her. It is further pleaded that in view of contradictory statements of both prosecutrix no offence under IPC and POCSO Act is made out. It is pleaded that neither identification of accused persons established nor any test identification parade was conducted. It is further pleaded that medical examination of prosecutrix was conducted on dated 21.1.2014 when first FIR was lodged at Mandi and as per medical certificate no rape or attempt to rape was committed and further pleaded that MLC of complainant did not suggest any injury on any part of the body of prosecutrix except small abrasion on right little finger. It is pleaded that deep rooted conspiracy has been hatched against accused persons. It is pleaded that applicants will join the investigation of the case as and when required and applicants will not tamper with prosecution witnesses in any manner. Prayer for acceptance of bail applications is sought. 3. Per contra police report filed. As per police report FIR No. 19 of 2014 dated 21.01.2014 registered under Sections 363, 342, 376D, 323, 201 and 511 IPC and Sections 6 and 17 of POCSO Act 2012 in Police Station Sarkaghat District Mandi (H.P.) against the applicants. There is recital in police report that all accused persons took two minor prosecutrix to Monal Hotel situated at Mandi and thereafter on the intervening night of 17.1.2014 and 18.1.2014 all five accused persons have committed gang rape with minor prosecutrix. There is further recital in police report that medical examination of prosecutrix was got conducted and MLC obtained. There is further recital in police report that on dated 21.1.2014 as per location shown by prosecutrix place of incident was inspected and site plan was prepared and videography was conducted. There is further recital in police report that bed sheet was also took into possession vide seizure memo and vehicle No. HP-28-8982 along with driving licence also took into possession. There is further recital in police report that statements of minor prosecutrix under Section 164 Cr.P.C. were recorded by Additional Chief Judicial Magistrate Sarkaghat and copies of birth certificates of minor prosecutrix and family register were also obtained. There is recital in police report that statements of prosecution witnesses under Section 161 Cr.P.C. recorded. There is recital in police report that as per birth certificates minor prosecutrix were born on dated 8.9.1999 and on dated 27.8.1997 respectively and both prosecutrix are minors. There is further recital in police report that challan under Sections 363, 342, 376D, 323, 201 and 511 IPC and Sections 6 and 17 of POCSO Act 2012 also filed against accused persons which is pending before learned Sessions Judge Mandi (H.P.). 4. Court heard learned Advocate appearing on behalf of the applicants and learned Additional Advocate General appearing on behalf of the State and also perused the record. 5. Following points arise for determination in this bail application:- 1. Whether bail applications filed under Section 439 Cr.P.C. are liable to be accepted as mentioned in memorandum of grounds of bail applications? 2. Court heard learned Advocate appearing on behalf of the applicants and learned Additional Advocate General appearing on behalf of the State and also perused the record. 5. Following points arise for determination in this bail application:- 1. Whether bail applications filed under Section 439 Cr.P.C. are liable to be accepted as mentioned in memorandum of grounds of bail applications? 2. Final Order. Findings on Point No.1 6. Submission of learned Advocate appearing on behalf of applicants that statements of both prosecutrix recorded under Section 164 Cr.P.C. by learned Additional Chief Judicial Magistrate Sarkaghat on dated 28.1.2014 are contradictory to each other qua place of incident and on this ground bail applications filed by applicants be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that fact of contradictory statements of two minor prosecutrix qua place of incident recorded under Section 164 Cr.P.C. will be considered at the time of final disposal of case and same cannot be considered in bail matter because statements recorded under Section 164 Cr.P.C. could be used only for corroboration or contradiction purpose during the trial of the case as per law. 7. Another submission of learned Advocate appearing on behalf of the applicants that applicants are innocent and they did not commit any offence cannot be decided at this stage. Same fact will be decided when the criminal case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 8. Another submission of learned Advocate appearing on behalf of the applicants that applicants are young youths and their future prospects are at stake and on this ground bail applications be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that allegations against the applicants are for commission of criminal offence of gang rape upon two minor prosecutrix. Gang rapes are increasing in the society day by day. It is well settled law that gang rape offences are stigma on the society. It is well settled law that every girl and woman has legal right to live in the society with honour and dignity. Gang rapes are increasing in the society day by day. It is well settled law that gang rape offences are stigma on the society. It is well settled law that every girl and woman has legal right to live in the society with honour and dignity. It is also well settled law that no one can be allowed to attack upon the dignity of minor girls or women in the society in order to maintain harmony in the society and in order to maintain majesty of law in the society. 9. Another submission of learned Advocate appearing on behalf of the applicants that investigation in present case is complete and charge sheet has been filed and on this ground bail applications filed by applicants be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that in view of gravity of offence against the applicants under Section 376D IPC i.e. gang rape and in view of allegations of criminal offence under Sections 6 and 17 of POCSO Act 2012 i.e. aggravated penetrative sexual assault upon minor prosecutrix it is not expedient in the ends of justice to release the applicants on bail at this stage. 10. Another submission of learned Advocate appearing on behalf of the applicants that identification of accused persons was not established and identification parade was not conducted and on this ground bail applications filed by applicants be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. As per Section 54-A of the Code of Criminal Procedure 1973 identification parade is conducted if the same is necessary for the purpose of investigation of the case. It is well settled law that identification parade is not mandatory in all criminal offences. 11. Another submission of learned Advocate appearing on behalf of the applicants that MLC of minor prosecutrix did not suggest any injury on any part of body of minor prosecutrix except small abrasions on right little finger and on this ground bail be granted to applicants is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that opinion of medical officer is only advisory in nature and even as per Section 30 of Protection of Children from Sexual Offence Act 2012 the Court shall presume culpable mental state of accused. It is well settled law that opinion of medical officer is only advisory in nature and even as per Section 30 of Protection of Children from Sexual Offence Act 2012 the Court shall presume culpable mental state of accused. It is well settled law that POCSO Act 2012 is a special Act and it is also well settled law that when there is conflict between the special law and general law then special law always prevails upon the general law. 12. Another submission of learned Advocate appearing on behalf of the applicants that learned trial Court has not considered the medical evidence, contents of FIR and statements of both girls under Section 164 Cr.P.C. and on this ground bail be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that medical evidence is proved as per testimony of medical officer and till date statement of medical officer is not recorded in present case therefore it is not expedient in the ends of justice to release applicant on bail. Similarly contents of FIR and contents of statements recorded under Section 164 Cr.P.C. could be used only for corroboration and contradiction purpose during trial of the case. 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. 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. 13. Submission of learned Additional Advocate General appearing on behalf of the State that in view of gravity of offence against the applicants under Sections 363, 342, 376D, 323, 201 and 511 IPC and Sections 6 and 17 of POCSO Act 2012 bail application filed by applicants be rejected is accepted for the reasons hereinafter mentioned. Captain Jagjit Singh. 13. Submission of learned Additional Advocate General appearing on behalf of the State that in view of gravity of offence against the applicants under Sections 363, 342, 376D, 323, 201 and 511 IPC and Sections 6 and 17 of POCSO Act 2012 bail application filed by applicants be rejected is accepted for the reasons hereinafter mentioned. Keeping in view the allegations of gang rape and in view of allegations of aggravated penetrative sexual assault upon minor prosecutrix as per POCSO Act 2012 and in view of the fact that both minor prosecutrix were minor at the time of commission of alleged offence Court is of the opinion that it is not expedient in the ends of justice to release the applicants on bail at this stage till testimonies of minor prosecutrix are not recorded in trial Court. Court is also of the opinion that if applicants are released on bail at this stage then trial of case will be adversely effected and there is apprehension in the mind of Court that if applicants are released at this stage then applicants will induce and threat the prosecution witnesses. Facts of case law cited by learned Advocate appearing on behalf of the applicant i.e. 2012(1) SCC page 40 titled Sanjay Chandra vs. Central Bureau of Investigation and facts of present case are entirely different and distinguishable and are not applicable in present case. Case reported in 2012(1) SCC page 40 titled Sanjay Chandra vs. Central Bureau of Investigation did not relate to gang rape case upon minor prosecutrix under Section 376D IPC and also did not relate to aggravated penetrative sexual assault upon minor prosecutrix under POCSO Act 2012. In view of above stated facts point No.1 is answered in negative. Point No.2 Final Order 14. In view of my findings on point No.1 bail applications Nos. 1362 of 2014 titled Sachin vs. State of H.P., 1363 of 2014 titled Ajeet Singh vs. State of H.P., 1364 of 2014 tilted Vipin Kumar vs. State of H.P., 1365 of 2014 titled Ravinder Kumar vs. State of H.P. and 1366 of 2014 titled Biri Singh vs. State of H.P. filed by applicants under Section 439 Cr.P.C. are rejected. Bail applications filed under Section 439 Cr.P.C. stand disposed of. Bail applications filed under Section 439 Cr.P.C. stand disposed of. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of these bail applications filed under Section 439 of Code of Criminal Procedure 1973. Certified copy of order be placed in each connected file forthwith. All pending application(s) if any also disposed of.