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Himachal Pradesh High Court · body

2018 DIGILAW 1827 (HP)

Desh Raj v. State of Himachal Pradesh

2018-10-20

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Sequel to order dated 30.10.2018, whereby bail petitioner namely, Desh Raj was ordered to be enlarged on bail in the event of arrest in relation to FIR No.268 of 2018, dated 13.10.2018, under Sections 366, 376, 120-B and 506 of IPC registered at police Station, Balh, District Mandi, H.P, SI Hem Raj has come present alongwith the record. Mr. Amit Kumar Dhumal, learned Deputy Advocate General has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 2. Close scrutiny of the record/status report, reveals that on 13.10.2018 complainant, namely Smt. Sarla Devi, who happened to be mother of the victim (hereinafter referred to as the prosecutrix) lodged complaint at police Station, Balh, District Mandi,H.P., alleging therein that on 7.10.2018 her daughter had gone to the house of her friend Veena Devi, but she did not return till 9.10.2018, where after maternal Uncle of Veena Devi gave a phone call to her daughter Pooja, whereby he informed that her daughter i.e. prosecutrix has solemnized marriage with his Nephew i.e. present bail petitioner Desh Raj. Complainant alleged that on 10.10.2018, maternal Uncle of bail petitioner came to her house and informed that prosecutrix has solemnized marriage with the bail petitioner, but they refused to send her daughter to her house. On 12.10.2018, person namely Kishan Chand informed that function is being organized on account of marriage of bail petitioner with the prosecutrix, but suddenly on 13.10.2018, at 7:00 AM somebody on phone informed that prosecutrix has left the house of bail petitioner without intimating anybody. Complainant alleged that bail petitioner in connivance with his relatives allured her daughter and subsequently compelled her to solemnize marriage with him. On the basis of aforesaid complaint, FIR detailed hereinabove, came to be lodged against the present bail petitioner on 13.10.2018 under Sections 366, 376 and 120-B of IPC. On 15.10.2018, prosecutrix came back to her village and allegedly informed complainant that she was forced to solemnize marriage with bail petitioner, who sexually assaulted her against her wishes. On 15.10.2018, police got recorded the statement of prosecutrix under Section 164 Cr.P.C, wherein she stated that bail petitioner with the help of his relatives forcibly solemnize marriage with her and thereafter sexually assaulted her. On 15.10.2018, police got recorded the statement of prosecutrix under Section 164 Cr.P.C, wherein she stated that bail petitioner with the help of his relatives forcibly solemnize marriage with her and thereafter sexually assaulted her. Police also got prosecutrix medically examined, wherein it has been opined that possibility of sexual assault cannot be ruled out, however report of FSL, is still awaited. 3. Mr. Amit Kumar Dhumal, learned Deputy Advocate General, on the instructions of Investigating Officer, fairly stated that pursuant to order dated 30.10.2018 bail petitioner has joined the investigation and is fully cooperating in the investigation. He also stated that at this stage nothing is required to be recovered from the bail petitioner, however his enlargement on bail at this stage, can be detrimental to the investigation and as such, prayer made in the instant application may be rejected. 4. Mr. Digvijay Singh, learned counsel representing the bail petitioner, while making this court to travel through the record/status report, vehemently argued that no case, if any, is made out against the bail petitioner under Sections 366 and 376 IPC because there is nothing on record to suggest that bail petitioner allured and then compelled the prosecutrix to solemnize marriage with him. Rather, evidence available on record itself suggest that prosecutrix, who is major, of her own joined the company of bail petitioner and then in the presence of her family members, especially maternal Grand father solemnized marriage in a temple at Sundernagar. He also contended that after solemnization of marriage, both i.e. bail petitioner and prosecutrix went to Public Notary where they both executed affidavits, stating therein that they both are major and they with their own volition have solemnized marriage and as such, bail petitioner has been falsely implicated in the case. He further contended that since complainant is not happy with the present marriage, she has compelled the prosecutrix to falsely depose against the bail petitioner, who is now her husband. He further contended that since complainant is not happy with the present marriage, she has compelled the prosecutrix to falsely depose against the bail petitioner, who is now her husband. Learned counsel for the petitioner also made available photographs in the Court to demonstrate that marriage was solemnized in a temple, whereafter prosecutrix remained in the company of bail petitioner and other family members for almost one week and during this period no attempt, whatsoever was ever made by her to lodge complaint, if any, against the bail petitioner or other family member, which clearly suggest that she was happy with the marriage, but subsequently on the insistence of her mother, she gave false statement under Section 164 Cr.P.C. He also invited attention of this Court to the statement of Sh. Ram Singh, who happened to be maternal Grand father of prosecutrix, to demonstrate that prosecutrix of her own will had solemnized marriage in the presence of her maternal grand father and at no point of time, she was ever compelled by the bail petitioner or other family members. 5. Learned Deputy Advocate General, while responding to the aforesaid arguments having been made by learned counsel for the petitioner, contended that keeping in view the gravity of the offences allegedly committed by the bail petitioner, he does not deserves to be enlarged on bail. Learned Additional Advocate General further contended that statement having been made by the prosecutrix under Section 164 Cr.P.C, clearly suggests that bail petitioner in connivance with other family members firstly allured the prosecutrix and then solemnized marriage with her by making her to consume some intoxicating substance. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that at the time of alleged incident prosecutrix was major. It is also not in dispute that prosecutrix had gone to the house of bail petitioner of her own, because there is no evidence to suggest that bail petitioner or his family members compelled the prosecutrix to join their company. It has specifically come in the statement of Ram Singh, who happened to be maternal grand father of prosecutrix that prosecutrix wanted to marry the present bail petitioner and she of her own volition solemnized marriage with the bail petitioner. It has specifically come in the statement of Ram Singh, who happened to be maternal grand father of prosecutrix that prosecutrix wanted to marry the present bail petitioner and she of her own volition solemnized marriage with the bail petitioner. It is also not in dispute that marriage was solemnized on 9.10.2018 at Sundernagar Temple, whereafter admittedly prosecutrix remained in the company of bail petitioner or other family members for almost a week. As per own version of complainant, she was in constant touch of the family members of bail petitioner till 13.10.2018 when complainant was informed that some function is being organized on account of solemnization of marriage. But there is nothing on record to suggest that during this period attempt, if any, was ever made by prosecutrix to raise hue and cry to lodge the complaint, if any, against the bail petitioner or other family members qua their forcible act, if any. 7. Leaving everything aside, affidavits adduced on record by the investigating Officer, which were executed by the bail petitioner and prosecutrix on 11.10.2018, clearly suggest that they of their own volition had solemnized marriage at Sundernagar Temple. These affidavits also reveals that by that time both parties were major. Interestingly, maternal grand father of prosecutrix is one of the witness to the affidavits. Advocate Pawan, before whom affidavits were executed, have also stated that both bail petitioner and prosecutrix had personally come to him and stated that they have solemnized the marriage. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of the totality of evidence collected on record by the investigating agency, but having perused the material available on record at this stage, this Court sees no reason for custodial interrogation of bail petitioner and as such, he deserves to be enlarged on bail. Otherwise also, it is well settled that till the time guilt of a person is not proved in accordance with law, he/she is deemed to be innocent. 8. It has been repeatedly held by Hon’ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 9. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr. 8. It has been repeatedly held by Hon’ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 9. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr. decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon’ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon’ble Apex Court has held as under:- 2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 10. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 49; wherein it has been held as under:- “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 49; wherein it has been held as under:- “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 11. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 12. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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. 13. Consequently, in view of the above, order dated 30.10.2018, passed by this Court, is made absolute, subject to petitioner’s furnishing personal bonds in the sum of Rs. 1,00,000/-( Rs. One Lakh) with one surety in the like amount, to the satisfaction of the Investigating Officer, besides the following conditions: A. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; B. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; C. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and D. He shall not leave the territory of India without the prior permission of the Court. 14. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of his bail. 15. 14. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of his bail. 15. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The bail petition stands disposed of accordingly. Copy dasti.