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2018 DIGILAW 1587 (HP)

Praveen Kumar Gautam v. State Of Himachal Pradesh

2018-08-31

SANJAY KAROL

body2018
JUDGMENT Sanjay Karol, A.C.J. (Oral) - ASI Ram Pal and ASI Ranbir Singh, Investigating officers, Police Station Sadar, District Shimla, H.P., are present alongwith record. 2. FIR No.144/18, dated 17th July, 2018, was registered at Police Station, Sadar, Shimla, under Sections 376 & 506 of Indian Penal Code. The said FIR came to be lodged on the statement of the prosecutrix, alleging that she had accompanied the petitioner Praveen Kumar Gautam from village Siwah (Haryana) to Shimla in a vehicle. At Shimla, she was made to spend the night in a hotel. During the night, accused forcibly entered her room and sexually assaulted her. In the morning of 17th July, 2018, she informed the police on telephone which led to the recording of her statement and consequently registration of the FIR. 3. It is a matter of record that same day, i.e. 17th July, 2018, at about 7.30 PM, accused was arrested by the police, since when he is behind the bars. 4. Accused denied allegations levelled by the prosecutrix. Alongwith the instant application, he has placed on record two documents i.e. (i) complaint lodged by him through his brother at the very same Police Station, alleging that he is a victim of conspiracy hatched by his driver Avinash and others, including Rinku, Pinder Sandhu and the prosecutrix. The circumstances under which the accused a resident of Haryana, landed up at Shimla alongwith the prosecutrix and driver Avinash also stand narrated therein; and (ii) affidavit of the driver Avinash, son of Kanhaiya Lal, affirming correctness of the contents of this complaint. 5. From the record so made available by the learned Additional Advocate General, it is evident that the police has carried out the investigation in relation to both the complaints i.e. the one filed by the prosecutrix and that of the complainant. Investigation in the FIR in question is almost complete. 6. Undisputedly, prosecutrix is a major. She has got two children. The contents of the affidavit filed by the driver casting doubt on the version of the prosecutrix are admitted to be correct by him during the course of investigation. 7. Investigation in the FIR in question is almost complete. 6. Undisputedly, prosecutrix is a major. She has got two children. The contents of the affidavit filed by the driver casting doubt on the version of the prosecutrix are admitted to be correct by him during the course of investigation. 7. The averments made in the complaint lodged on behalf of the petitioner-accused that conspiracy was hatched to blackmail him and extract money, prima facie lends credence for it has come in the investigation that on the date of alleged crime, driver Avinash, his girlfriend Jubi, Pinder Sandhu and Rohit were inconstant touch with each other on the phone. Within a short span, 59 calls were made by them amongst each other. They are all residents of Haryana but were present near Shimla. 8. No doubt, prosecutrix had made a statement under section 164 of Code of Criminal Procedure, 1973 alleging forcible sexual assault, but in view of overall attending facts and circumstances this Court is of the considered view that interest of justice would be best met, if the accused is enlarged on bail, more so when no recovery is sought to be effected from him and at this point in time, there is no apprehension of the petitioner accused threatening, intimidating or winning over the witnesses. Also, statement of the prosecutrix being a virgin cannot be said to be correct. 9. The Court also takes into notice the statement made by driver Avinash to the police, taking a risk of being involved in a crime of criminal conspiracy. It is not a case of the prosecution that either the petitioner or his brother have been able to influence the driver, who, in fact, is present in the Court and through the learned Additional Advocate General, maintains the stand taken before the police, verifying the contents of the petitioner''s complaint to be correct. 10. It is not a case of the prosecution that either the petitioner or his brother have been able to influence the driver, who, in fact, is present in the Court and through the learned Additional Advocate General, maintains the stand taken before the police, verifying the contents of the petitioner''s complaint to be correct. 10. Apex Court in Prasanta Kumar Sarkar vs. Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 11. Having holistically considered the nature of offence and the relevant attending circumstances in favour of the petitioner accused, and also in view of the law discussed, herein above, in my considered view, it is a fit case in which petitioner should and ought to be enlarged on bail. 12. As such, petitioner, Praveen Kumar Gautam is ordered to be released on bail on his furnishing personal bond in the sum of Rs. 1.00 lacs (rupees one lakh) with one surety in the like amount to the satisfaction of the Court concerned. It is clarified that petitioner shall not tamper with the prosecution evidence, flee away from the jurisdiction of this Court, try to influence the witnesses or in any manner act and conduct himself so as to disentitle him from the discretionary power. Also, he shall always make himself available during trial. The Court is further directed to comply with the directions issued by the High Court, vide letter No.HHCVIG/Misc. Instructions/93-IV-7139, dated 18.3.2013. 13. 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. 14. Application stands disposed of. 15. Copy dasti.