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2016 DIGILAW 976 (HP)

Suresh Kumar v. State of Himachal Pradesh

2016-05-31

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Section 439 of Code of Criminal Procedure 1973 for grant of bail relating to FIR No. 18 of 2014 dated 16.1.2014 registered under Sections 341, 342, 363, 376 and 506 read with section 34 IPC in police station Kullu District Kullu HP. Brief facts of the case. 2. Prosecutrix after completion of her B.A examination was learning stitching work in Nisha stitching centre Kullu. On dated 15.1.2014 when prosecutrix in the evening boarded down from bus at Kalung bus stand then three boys came nearby prosecutrix out of them one was co-accused Suresh. Thereafter co-accused Suresh forcibly took prosecutrix in a black coloured vehicle by way of closing the mouth of prosecutrix so that prosecutrix could not cry. Thereafter accused also switch off the light of vehicle. Thereafter co-accused Suresh Kumar brought prosecutrix in his house at Hathithan and committed rape with prosecutrix. Thereafter co-accused Suresh Kumar also told to prosecutrix that in case she would narrate incident to anybody then she would be cut into pieces and pieces of body of prosecutrix would be thrown into a tank. Thereafter prosecutrix was medically examined and MLC of prosecutrix was obtained and as per MLC report prosecutrix was exposed to frequent coitus. Thereafter as per location shown by prosecutrix site plan was prepared and photographs of location, mattress and blanket upon which criminal offence of rape was committed took into possession vide seizure memo. Co-accused Suresh Kumar was also medically examined and as per MLC report co-accused Suresh Kumar was able to performa sexual act. Vehicle No. HP-51(T)-8129 in which prosecutrix was abducted also took into possession vide seizure memo. Criminal case is in the stage of prosecution evidence before learned Trial Court. Learned Trial Court already recorded testimony of prosecutrix. 3. Court heard learned Advocate appearing on behalf of petitioner and learned Deputy Advocate General appearing on behalf of State. 4. Following points arise for determination in the present bail petition: (1) Whether bail petition filed under Section 439 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of bail petition?. (2) Final Order. Findings upon point No.1 with reasons. 5. 4. Following points arise for determination in the present bail petition: (1) Whether bail petition filed under Section 439 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of bail petition?. (2) Final Order. Findings upon point No.1 with reasons. 5. Submission of learned Advocate appearing on behalf of petitioner that petitioner is innocent and did not commit any offence as alleged by prosecution and on this ground present bail petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Fact whether petitioner is innocent or not cannot be decided at this stage of criminal case. Same fact will be decided by learned Trial Court when case shall be decided on merits by learned Trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case. 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner is young married person having minor children and petitioner is only bread earner of his family and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. The allegations against the petitioner are very heinous and grave in nature relating to commission of criminal offence of rape. It is well settled law that murder destroy body of victim but rapist degrades soul of female victim. Offence of rape is criminal offence against society. It is well settled law that all females have legal right to live in society with dignity and honour. Rape destroys entire psychology of a woman and pushed her into deep emotional crises. Rape is violative of victim most cherished fundamental rights contained in Article 21 of Constitution of India. See AIR 1996 SC 922 title Bodhisattwa Gautam Vs. Miss Subhra Chakraborty. 7. Submission of learned Advocate appearing on behalf of petitioner that petitioner will not tamper with prosecution witnesses in any manner and will abide by the directions of Court and no useful purpose will be served keeping petitioner in judicial custody and on this ground bail petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Submission of learned Advocate appearing on behalf of petitioner that petitioner will not tamper with prosecution witnesses in any manner and will abide by the directions of Court and no useful purpose will be served keeping petitioner in judicial custody and on this ground bail petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that at the time of granting bail following factors should be considered (i) Nature and seriousness of offence (ii) 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) Larger interests of the public or the State. See AIR 1978 SC 179 title Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 title The State Vs. Captain Jagjit Singh. Petitioner also placed on record statement of prosecutrix recorded by learned Trial Court on dated 31.3.2016. Prosecutrix has specifically stated in her testimony that petitioner had forcible committed sexual intercourse with her without her consent 3-4 times at night time and prosecutrix during night time became unconscious. Prosecutrix has specifically stated in positive manner that accused threatened prosecutrix that in case she would raise alarm then he would cut her body into pieces and would throw her body pieces in septic tank. Earlier application Cr.MP(M) No. 1332 of 2015 was also filed by petitioner for bail and same was rejected by High Court of HP. Court is of the opinion that there is no changed circumstance in order to allow bail petition. Court is of the opinion that if petitioner is released on bail at this stage then trial of the case will be adversely effected. Court is of the opinion that if petitioner is released on bail at this stage then interest of State and general public will also be adversely effected. 8. Submission of learned Deputy Advocate General that trial of the case is under process and if petitioner is released on bail at this stage then petitioner will induce and threat prosecution witnesses and on this ground bail petition be rejected is accepted for the reasons hereinafter mentioned. 8. Submission of learned Deputy Advocate General that trial of the case is under process and if petitioner is released on bail at this stage then petitioner will induce and threat prosecution witnesses and on this ground bail petition be rejected is accepted for the reasons hereinafter mentioned. There is apprehension in the mind of Court that if petitioner will be released on bail at this stage then petitioner will induce and threat remaining prosecution witnesses and trial of the case will be adversely effected. In view of allegation of heinous criminal offence of rape upon un-married girl it is not expedient in the ends of justice to release the petitioner on bail at this stage of the case. In view of above stated facts point No.1 is answered in negative. Point No.2 (Final order) 9. In view of findings on point No.1 bail petition filed by petitioner under Section 439 of the Code of Criminal Procedure 1973 is rejected. Observation made hereinabove will be strictly for the purpose of deciding present bail petition and will not effect merits of case in any manner. Bail petition is disposed of. All pending applications if any also disposed of.