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2018 DIGILAW 1892 (HP)

Ajay Kumar v. State of Himachal Pradesh

2018-10-31

SANDEEP SHARMA

body2018
JUDGMENT SANDEEP SHARMA, J. 1. Bail petitioner namely Ajay Kumar alias Ajju, who is behind bars since 24.10.2017, has approached this Court in the instant proceedings filed under Section 439 of Cr.P.C., praying therein for grant of regular bail in connection with FIR No. 116/17 dated 23.10.2017, under Sections 376, 354-A and 109 of IPC, registered at PS Aut, District Mandi, HP. 2. Sequel to order dated 10.10.2018, passed by this Court, ASI Joginder Singh, P.S. Aut, District Mandi, HP, has come present in Court along with record of the case. Mr. Sanjeev Sood, learned Additional 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. 3. Close scrutiny of the record/status report reveals that on 23.10.2017, complainant/prosecutrix got her statement recorded with police, alleging therein that bail petitioner, who is known to her since April, 2017, gave her a call on 19.10.2017 and insisted upon her to meet him. Complainant informed him that since her mother is not at home, as she has gone to meet her father at Shamji, she cannot come, but bail petitioner insisted that in case, she does not come, he would come to her residence. On 20.10.2017, complainant-prosecutrix leaving behind her younger sister and brother, reached a place called Parjaul Dhar, where allegedly, bail petitioner was waiting for her. At the aforesaid place i.e. Parjaul Dhar, bail petitioner with other person namely Rajiv, was waiting for her. Though complainant insisted that she needs to go back to her house, but bail petitioner compelled her to accompany her to place called Bali Chawki. After having reached Bali Chawki, complainant and bail petitioner went to Ambika Guest house, where person namely Rajiv had already hired a room and he was waiting for them. As per own version of the complainant-prosecutrix, they all three sat together for 10-15 minutes, whereafter Rajiv left the room. Allegedly, Rajiv and bail petitioner consumed liquor, whereafter bail petitioner forcibly committed sexual intercourse with the complainant-prosecutrix. Though, person namely Rajiv also insisted upon the complainant-prosecutrix to develop physical relations with him, but she did not agree. As per the complainant she remained throughout night with the bail petitioner and Rajiv in one room. Allegedly, Rajiv and bail petitioner consumed liquor, whereafter bail petitioner forcibly committed sexual intercourse with the complainant-prosecutrix. Though, person namely Rajiv also insisted upon the complainant-prosecutrix to develop physical relations with him, but she did not agree. As per the complainant she remained throughout night with the bail petitioner and Rajiv in one room. She alleged that she had slept with bail petitioner, who committed forcible sexual intercourse against her wishes on two occasions and in the early morning, person namely Ravi left her at a place called Parjaul Dhar. She stated that in the way, Rajiv also insisted upon her to develop physical relations, but she refused. Record further reveals that after having reached Parjaul Dhar, she went to some temple, where some rituals were being performed by the villagers and she also participated in the same, but interestingly, from there, she never went to her home, rather she again came back to Bali Chawki, and stayed in the same guest house, from where she was allegedly recovered by her family members. On the basis of aforesaid statement, formal FIR came to be registered against the bail petitioner and person namely Rajiv under Section 375, 354-A and 109 IPC at PS. Aut, District Mandi, and since then, bail petitioner is behind bars, whereas co-accused namely Rajiv stands already enlarged on bail. 4. Mr. N.S. Chandel, learned counsel representing the bail petitioner while inviting attention of this Court to the status report/record vehemently argued that no case much less under Section 376 IPC is made out against the bail petitioner. He contended that statement of complainant prosecutrix made under Section 164 Cr.P.C., itself suggests that she of her own volition had joined the company of the bail petitioner and at no point of time, she was subjected to forcible sexual intercourse. Mr. Chandel, further contended that bare conduct of prosecutrix, who at the time of alleged incident, was admittedly major, nowhere suggests that bail petitioner taking undue advantage of her innocence committed forcible sexual intercourse with her. Mr. Chandel, further contended that it has specifically come in the evidence that complainant-prosecutrix after having received telephonic call from the bail petitioner, of her own volition, had joined his company and thereafter, remained throughout night with the bail petitioner at Ambika Guest house at Bali Chawki. Mr. Chandel, further contended that it has specifically come in the evidence that complainant-prosecutrix after having received telephonic call from the bail petitioner, of her own volition, had joined his company and thereafter, remained throughout night with the bail petitioner at Ambika Guest house at Bali Chawki. He contended that in case, she had not joined the company of the bail petitioner of her consent, she had sufficient time to raise hue and cry at the guest house, but her own conduct suggests that she was consenting party to the alleged incident and as such, bail petitioner deserves to be enlarged on bail. While referring to the medical evidence adduced on record, Mr. Chandel contended that there is definite medical evidence available on record suggestive of the fact that complainant-prosecutrix was not subjected to forcible sexual intercourse because there is no finding of violence on her person. Lastly, Mr. Chandel, contended that investigation in the case is complete and challan stands filed in the competent court of law and as such, bail petitioner, who has already suffered for more than one year, deserves to be enlarged on bail during the pendency of the trial. 5. Mr. Sanjeev Sood, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of challan in the competent court of law, contended that keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve to be enlarged on bail, rather needs to be dealt with severely. Mr. Sood further contended that medical evidence adduced on record categorically suggests that complainant-prosecutrix was subjected to sexual intercourse and as such, it cannot be said that there is no medical evidence. He further contended that there is ample evidence available on record that bail petitioner in connivance with co-accused namely Rajiv, taking undue advantage of innocence of the complainant-prosecutrix, who is rustic villager firstly, made her to leave her house and then, sexually assaulted her against her wishes and as such, prayer made in the instant petition for grant of bail, deserves to be rejected out-rightly. 6. I have heard the learned counsel for the parties and gone through the record of the case. 7. 6. I have heard the learned counsel for the parties and gone through the record of the case. 7. Having heard the learned counsel for the parties and perused material available on record, this Court finds that complainant-prosecutrix had prior acquaintance with the bail petitioner namely Ajay, who as per own version of complainant-prosecutrix, had been meeting and contacting her over telephone since April 2017. As per own version of complainant-prosecutrix on 20.10.2017, bail petitioner gave her a phone call and insisted upon her to meet him at Parjaul Dhar. Though complainant-prosecutrix has stated that she refused to come, but fact remains that she of her own volition joined the company of the bail petitioner, who admittedly was waiting for her at a place called Parjaul Dhar, which was at a distance of approximately 8-10 KMs from the house of the complainant-prosecutrix. Similarly, there is no explanation available on record that if complainant-prosecutrix, who was admittedly major at the time of the alleged incident, was not willing to join the company of the petitioner, why she kept mum throughout while her stay at Ambika Guest house at Bali Chowki, rather her own statement reveals that she enjoyed the meal with bail petitioner and co-accused. She herself stated that both, accused and Rajiv, consumed liquor and thereafter, they slept in one room at Ambika Guest House. If at all, she was not comfortable with the company of the bail petitioner and co-accused Rajiv, she had ample time to report the matter to the management of the Ambika Guest house, but there is no such evidence collected on record by the Investigating Agency, which conduct of the complainant-prosecutrix certainly compels this Court to agree with the contention of Mr. Chandel, that complainant-prosecutrix was a consenting party. There is another aspect of the matter i.e. when prosecutrix could resist demand of co-accused Rajiv as stated by her in her statement, then why not of bail petitioner. 8. Leaving everything aside, it is not understood that once after leaving the guest house, prosecutrix had got an opportunity to report the matter to the people present at Temple at Parjaul Dhar, where she also participated, why she again returned back to Ambika Guest house. 8. Leaving everything aside, it is not understood that once after leaving the guest house, prosecutrix had got an opportunity to report the matter to the people present at Temple at Parjaul Dhar, where she also participated, why she again returned back to Ambika Guest house. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the prosecution, but this Court having perused material available on record at this stage, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period, especially, when he has already suffered for more than a year. 9. No doubt medical evidence adduced on record indicates that possibility of recent sexual intercourse cannot be ruled out, but this Court cannot ignore the fact that medical officer has categorically opined that there is no sign of violence. Otherwise also, prosecution has not placed on record material, if any, suggestive of the fact that in the event of the petitioner's being enlarged on bail, he would flee from justice and as such, this Court is inclined to accept the prayer made for grant of bail at this stage. 10. Repeatedly, it has been held by the Hon'ble Apex Court as well as this Court that till the time, guilt of individual is not proved in accordance with law, he/she is deemed to be innocent and in the case at hand also, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. It is well settled that till the time a person is not found guilty, one is deemed to be innocent. 11. 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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced 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. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in. In Re-Inhuman Conditions in 1382 Prisons. 12. 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, 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. 13. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 Supreme Court Cases 49; 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 un-convicted 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 un-convicted person for the propose of giving him a taste of imprisonment as a lesson." 14. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218 , The Hon'ble Apex Court has held as under:- "This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 15. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 15. 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, behavior, 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. 16. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with 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 him/her 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. 17. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 18. 17. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 18. 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 petition stands accordingly disposed of.