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Himachal Pradesh High Court · body

2015 DIGILAW 1714 (HP)

Dev Raj Malhotra v. State of Himachal Pradesh

2015-11-21

SURESHWAR THAKUR

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JUDGMENT : SURESHWAR THAKUR, J. 1. All these petitions arise out of a common FIR, hence are liable to be disposed of by a common order. 2. The instant petitions have been instituted by the bail petitioners under Section 438 Cr.P.C, for grant of anticipatory bail to them as they apprehend their arrest, for theirs having allegedly committed offences punishable under Sections 363, 366, 376, 342, 195A & 506 read with Section 34 IPC, recorded in case FIR No. 94/2015 of 5.11.2015, registered at Police Station, Fatehpur, District Kangra, H.P. 3. The Investigating Officer has filed a detailed status report. The learned Deputy Advocate General does not contest the factum of the prosecutrix, aged 21 years having solemnized marriage with bail applicant, Sourav. An affidavit portraying the factum of the prosecutrix having solemnized marriage with bail applicant, Sourav is appended with their petitions as Annexure P-1. Bail applicants, Ritu and Dev Raj are respectively the sister and brother-in-law of bail applicant, Sourav, both of whom are alleged to have facilitated the marriage inter se bail applicant, Sourav with the prosecutrix. The prosecutrix and the bail applicant, Sourav lived together as husband and wife for a period of one month. However, thereafter acrimony erupted in their marital relations, which constrained the prosecutrix to lodge an FIR with a narration therein of hers being subjected to forcible sexual intercourse by bail applicant, Sourav. The perpetration of forcible sexual intercourse upon the prosecutrix by bail applicant, Sourav is alleged to have occurred during the subsistence of a wedlock inter se the bail applicant, Sourav and the prosecutrix. Given the narration in the FIR of bail applicant, Sourav, as stands enunciated by the prosecutrix both in the FIR as well as in her statement recorded under Section 164 Cr.P.C. before the Magistrate concerned having subjected her to forcible sexual intercourse only during the subsistence of their lawful wedlock, besides wherein she alleges it to be a sequel to exertion of compulsion besides duress upon her by bail applicant, Sourav. However, before countenancing the aforesaid allegation against the bail applicant, Sourav constituted in the aforesaid material, this Court is enjoined to unearth from the apposite material the preeminent factum of the contract of marriage entered inter se bail applicant, Sourav and the prosecutrix, with the former being aided and abetted by the co-bail applicants being palpably void arising from it having been induced both by exercise of misrepresentation or duress exerted by the bail applicants/accused upon the prosecutrix, emanation whereof would render the sexual intercourses, if any performed by bail applicant, Sourav with the prosecutrix even during the subsistence of a marriage inter se them to be construable to be bereft of any consensuality. However, the manifestation both in the FIR as well as in the statement of the prosecutrix recorded under Section 164 Cr.P.C. before the Magistrate concerned of hers having been compelled by the co-bail applicants to enter into a wedlock with bail applicant, Sourav appears to be per se ingrained with falsity arising from the imminent fact of the marriage inter se bail applicant, Sourav with the prosecutrix having come to be solemnized in consonance with Hindu rites and customs, in pursuance whereto the competent authority under the Registration of Marriages Act had come to register it. The factum of the marriage of the bail applicant, Sourav with the prosecutrix having come to be registered by the competent authority constituted under the Registration of Marriages Act, rendered it to be presumably a valid marriage unless the said presumption stood rebutted by the prosecutrix by contesting the factum of it having to be registered by the competent authority constituted under the Registration of the Marriages Act without hers appearing before it. However, the aforesaid material to rebut the presumption of the prosecutrix having entered into a valid wedlock with the bail applicant, Sourav remains unadduced. In sequel the presumption drawn by this Court qua the validity of matrimony entered inter se the bail applicant, Sourav with the prosecutrix attains conclusivity. However, the aforesaid material to rebut the presumption of the prosecutrix having entered into a valid wedlock with the bail applicant, Sourav remains unadduced. In sequel the presumption drawn by this Court qua the validity of matrimony entered inter se the bail applicant, Sourav with the prosecutrix attains conclusivity. Ensuably, an inference is of the competent authority constituted under the Registration of Marriages Act having proceeded to register the marriage solemnized inter se bail applicant, Sourav and the prosecutrix, only on theirs appearing before it especially for want of material in negation thereto, whereat there being no demonstrable evidence of the prosecutrix having either protested before the competent authority for constraining it to not register their marriage nor evidence existing of theirs having not appeared before the competent authority, absence whereof begets an inference of both on theirs appearing before the competent authority having volitionally conceded before it qua theirs having entered into a voluntary matrimony, hence leading the competent authority to register their marriage. Concomitantly, there-from an inference which upsurges is of the marriage of the prosecutrix with bail applicant, Sourav being free from any stain or taint of it having been contracted by exertion of compulsion or duress by bail applicant, Sourav upon the prosecutrix, besides its consummation being not facilitated by co-bail applicants also exerting duress or compulsion upon her. Obviously, when the marriage inter se bail applicant, Sourav and the prosecutrix is free from any stain of exercise of coercion or duress by the bail applicant upon the prosecutrix, naturally then with bail applicant, Sourav having during its subsistence performed sexual intercourses with the prosecutrix, cannot render his act of performing sexual intercourses with the prosecutrix to be acquiring any penal culpability, especially when there is no narration or unfoldment in the FIR as well as in the statement of the prosecutrix recorded under Section 164 Cr.P.C. before the Magistrate concerned of bail applicant, Sourav at any stage having threatened or coerced her to perform sexual intercourses with her. Moreover, the MLCs prepared by the doctor concerned qua the prosecutrix or hers examining the prosecutrix omits to unearth the factum of the prosecutrix having gained any injuries on her private parts or any other part of the body nor when even the MLC prepared qua the accused is reflective of any injuries having occurred on his person reflective of the prosecutrix resisting the sexual overtures of bail applicant, Sourav. In aftermath, absence thereof in the apposite MLCs qua both the prosecutrix and the bail applicant, fastens a conclusion of bail applicant, Sourav during the subsistence of a lawful marriage with the prosecutrix having not performed any forcible sexual intercourses with the latter or subjected her to any threat, violence or assault. Consequently, in face of the aforesaid discussion displaying prima-facie at this stage the innocence of the bail petitioners in the act of bail applicant, Sourav having during the subsistence of his lawful wedlock with the prosecutrix performed with her any alleged forcible sexual intercourses or subjected her to any alleged threat, violence or assault, necessarily then this Court is constrained to afford the facility of bail in favour of the bail petitioners. 4. Moreover, when at this stage no material has been placed on record by the prosecution demonstrating that in the event of bail being granted to the bail petitioners, there is every likelihood of theirs fleeing from justice or tampering with prosecution evidence, further constrains this Court to afford the facility of bail in favour of the bail petitioners. Accordingly, the indulgence of bail is granted to the bail petitioners and the order rendered on 17.11.2015 is confirmed on the following conditions: 1. That they shall join the investigation, as and when required by the Investigating agency; 2. That they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police; 3. That they shall not leave India without the previous permission of the Court; 4. That they shall deposit their passports, if any, with the Police Station, concerned; 5. That in case of violation of any of the conditions, the bail granted to the petitioners shall be forfeited and they shall be liable to be taken into custody; 6. That they shall not leave India without the previous permission of the Court; 4. That they shall deposit their passports, if any, with the Police Station, concerned; 5. That in case of violation of any of the conditions, the bail granted to the petitioners shall be forfeited and they shall be liable to be taken into custody; 6. That they shall apply for bail afresh when the challan is filed before the trial Court. 5. In view of above, petitions stand disposed of. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.