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Himachal Pradesh High Court · body

2015 DIGILAW 94 (HP)

Naveen Kumar v. State of H. P.

2015-02-13

SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, J. (oral) The instant application has been filed by the bail applicant under Section 439 of the Cr.P.C., for the grant of bail to him for his having allegedly committed offences punishable under Sections 376 and 506 of the Indian Penal Code in F.I.R. No.186 of 2014 registered at police station Jawalamukhi, District Kangra, H.P. on 15.10.2014. 2. Shorn of verbosity, the facts germane to decide the instant bail application are constituted in the status report, whose perusal unequivocally voices the factum of the alleged incidents having occurred 5 to 6 months/4 months prior to the lodging of the F.I.R. by the complainant against the bail applicant. The delay is enormous as well as inordinate. The effect of consensuality, if any, of the complainant to the alleged initial perpetration of sexual assault on her person by the bail applicant is concerted to be shred apart by the factum of the prosecutrix having been subjected to alleged forcible sexual intercourse at the instance of the bail applicant when she was under a state of intoxication. Even though she on consummation of perpetration of the sexual assault on her person, allegedly at the instance of the bail applicant, recovered consciousness yet she, even when with hers having come to regain consciousness, omitted to promptly report the matter to the police station concerned. As a sequel, her omission to do so hence robs the effect, if any, of the bail applicant having perpetrated the initial sexual assault on the person of the complainant without her consent, inasmuch as, his having perpetrated the alleged forcible sexual intercourse upon her when she given her intoxication was disabled or constrained to accord consent. Rather the sequelling inference is that the inordinate delay as begotten since the initial occurrence and its being reported to the police, at this stage prima facie constrains this Court to conclude that the offence, if any, committed by the bail applicant was not committed or perpetrated by the bail applicant upon her when she was under a state of unconsciousness brought out by hers being administered intoxicants by the bail applicant. For reiteration, the initial perpetration of the alleged forcible sexual intercourse on the person of the bail applicant was hence consensual. For reiteration, the initial perpetration of the alleged forcible sexual intercourse on the person of the bail applicant was hence consensual. Moreover, even the incident which occurred on 16th June, 2014 at hotel Prayag, Jawalmukhi though is portrayed to be under duress or compulsion emanating from the fact of the bail applicant having purportedly clicked her photographs with hers being in a compromising position, nonetheless the said fact is dispelled by the status report disclosing that the analysis by the RFSL of the mobile/cell phone of the bail applicant omitted to divulge that it carries any obscene/nude photographs of the prosecutrix. Cumulatively, in view thereof and when the said subsequent commission of alleged forcible sexual intercourse upon the person of the prosecutrix by the bail applicant is also highly distant or remote from the date of lodging of the F.I.R., the delay, hence prima facie drains the truthfulness of the version spelt out by the prosecutrix. The further concomitant is that hence the sexual act, if any, perpetrated on her person by the bail applicant was consensual in nature. 3. Moreover, given the fact that the bail applicant is in judicial custody since 17/10/2014 and when the investigation into the allegedly committed offences by the bail applicant, is complete, his further judicial incarceration ought not to be prolonged as its prolongation would unnecessarily fetter his liberty. 4. In view of the aforesaid discussion and when at this stage no material has been placed on record by the prosecution disclosing that in case the facility of bail is accorded to the bail applicant, there is every likelihood of his fleeing from justice or tampering with prosecution evidence. Accordingly, the bail application is allowed and the bail applicant is ordered to be released from judicial custody wherein he is presently lodged on his furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Kangra at Dharamshala and also subject to his fulfilling the following conditions: (i) That the bail applicant shall join the investigation, as and when required by the investigating agency; (ii) That he shall not 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. (iii) That he shall not leave India without the permission of the Court. (iii) That he shall not leave India without the permission of the Court. (iv) That he shall deposit his passport, if any, with the Police Station, concerned; 3. With the aforesaid observations, the present petition stands disposed of. It is, however, made clear that the findings recorded hereinabove will have no bearing on the merits of the case.