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Himachal Pradesh High Court · body

2018 DIGILAW 652 (HP)

Paras Ram v. State Of Himachal Pradesh

2018-04-16

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Bail petitioners, namely Paras Ram and Sada Nand, apprehending their arrest, have approached this Court for grant of anticipatory bail in case FIR No. 61 of 2018, dated 7.4.2018, under Sections 376, 342, 323, 506 and 34 of Indian Penal Code, registered at Police Station, Theog, District Shimla, Himachal Pradesh. 2. Sequel to order dated 9.4.2018, ASI Ajeet Singh, police Station, Theog, District Shimla, has come present alongwith the record of the case. Record perused and returned. 3. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the investigating agency, perusal whereof, suggest that on 7.4.2018 complainant submitted complaint to Dy. S.P, Theog, alleging therein that bail petitioners, named hereinabove, forcibly detained her w.e.f.12.12.2017 to 5.4.2018 at village Kandi, Tehsil Theog, District Shimla, Himachal Pradesh and during this period they sexually assaulted her against her wishes. She further alleged that on 5.4.2018, when she made an attempt to run away from the place of detention alongwith her husband, bail petitioners gave them beatings, as a consequence of which, she as well as her husband suffered grievous injuries on their person. Complainant further alleged that in the month of December, 2017 she alongwith her husband had come to Theog for daily wage work. Allegedly, complainant and her husband were working at village Kayartu in the house of Sh. Mool Raj. On 11.12.2017, husband of the complainant had gone to his native village and on 12.12.2017 when the complainant was collecting fuel wood in the nearby the jungle, bail petitioner, Paras Ram sexually assaulted her against her wishes and thereafter he forcibly took her to his house. 4. Subsequently, on the next day, bail petitioner Paras Ram took the complainant to the house of another bail petitioner, namely Sada Nand, who used to reside alone in his house. Since 12.12.2017, bail petitioners, named hereinabove, repeatedly sexually assaulted the complainant against her wishes till the time she was rescued by her husband on 5.4.2018. In the aforesaid background, FIR detailed hereinabove, came to be lodged against the bail petitioners. 5. Mr. Since 12.12.2017, bail petitioners, named hereinabove, repeatedly sexually assaulted the complainant against her wishes till the time she was rescued by her husband on 5.4.2018. In the aforesaid background, FIR detailed hereinabove, came to be lodged against the bail petitioners. 5. Mr. J.L. Bhardwaj, learned counsel representing the bail petitioners, strenuously argued that no case, if any, is made out against the bail petitioners under Sections 376, 342, 323, 506 and 34 of Indian Penal Code, because there is no evidence collected/adduced on record by the prosecution suggestive of the fact that the complainant was forcibly detained at the house of bail petitioner Sada Nand, for almost four months. He further contended that bare perusal of the evidence collected so far on record, clearly suggest that complainant of her own volition stayed with the bail petitioner Sada Nand and at no point of time, she lodged complaint, if any, against her illegal detention, as alleged by her in her complaint. He further contended that medical evidence adduced on record, nowhere suggest that complainant as well as her husband was given beatings, as a consequence of which, she and her husband suffered injuries on their person. Mr. Bhardwaj, further contended that there is no report/findings given by the medical authorities that sign, if any, of violence were noticed on the person of complainant, meaning thereby, she lived with the bail petitioner Sada Nand of her own volition without any protest. 6. Mr. Bhardwaj, further contended that there is no document on record suggestive of the fact that husband of the complainant had lodged any complaint with regard to disappearance of complainant from village Kayartu, rather he choose to keep mum for almost four months i.e. 5.4.2018, when he took her wife alongwith him. Mr. Bhardwaj, further contended that investigation in the case is complete and pursuant to order dated 9.4.2018, both the bail petitioners have joined the investigation and they are fully co-operating in the investigation and as such, no fruitful purpose would be served in case prayer of respondent-State for their custodial interrogation is accepted. Lastly, Mr. Mr. Bhardwaj, further contended that investigation in the case is complete and pursuant to order dated 9.4.2018, both the bail petitioners have joined the investigation and they are fully co-operating in the investigation and as such, no fruitful purpose would be served in case prayer of respondent-State for their custodial interrogation is accepted. Lastly, Mr. Bhardwaj, learned counsel for the bail petitioners, contended that both the bail petitioners are not only the local resident of area, but they are also Government employees and as such, there is no likelihood of their fleeing from justice and they shall make themselves available for investigation and trial as and when called by the investigating agency. 7. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing aforesaid submissions having been made by learned counsel for the bail petitioners, contended that it stands duly established on record that both the bail petitioners taking undue advantage of the innocence of complainant not only illegally detained her in their house, rather they repeatedly sexually assaulted her against her wishes and as such, they do not deserve any leniency and need to be dealt with severely. While refuting the contention of learned counsel representing the bail petitioners that nothing has emerged in the medical evidence, Mr. Thakur, learned Additional Advocate General, contended that it has specifically come in the report of Doctor that possibility of sexual assault recent or remote from current date cannot be ruled out. While fairly admitting that no report, if any, was received by police Station, Theog, with regard to disappearance of complainant, Mr. Thakur, learned Additional Advocate General, contended that it may not be sufficient to conclude that complainant was consenting party in the crime alleged to have been committed by the bail petitioners. Learned Additional Advocate General further contended that since husband of the complainant was away from his house for considerable time, factum with regard to disappearance of her wife came to his notice when he returned to village Kayartu in the month of April, 2018, whereafter he made an attempt to trace her. Mr. Learned Additional Advocate General further contended that since husband of the complainant was away from his house for considerable time, factum with regard to disappearance of her wife came to his notice when he returned to village Kayartu in the month of April, 2018, whereafter he made an attempt to trace her. Mr. Thakur, further contended that though investigation in the case is almost complete and petitioners have joined the investigation in terms of the order dated 9.4.2018, passed by this Court, but in the event of petitioners being enlarged on bail, there is possibility that they may influence prosecution witnesses and as such, bail petitions deserve to be rejected. 8. I have heard learned counsel representing the parties and carefully gone through the record made available. 9. As per own statement of the complainant she was sexually assaulted by bail petitioner Paras Ram on 12.12.2017, whereafter he allegedly took her to his house, but it is not understood that if bail petitioner Paras Ram had sexually assaulted the complainant on 12.12.2017, what prevented her to disclose this fact to the family of Paras Ram, who used to reside with him in his house. Allegedly, bail petitioner Paras Ram took complainant to the house of Sada Nand on 13.12.2017 where she remained till 5th April, 2018, but there is nothing on record suggestive of the fact that during this period complainant made any effort/attempt to raise hue and cry, if any, against her illegal detention allegedly made by the bail petitioners. It has come in the investigation that there are houses at the distance of 100 meters from the house of Sada Nand, where complainant was allegedly detained against her wishes. Though, complainant in her statement has claimed that on 18.12.2017 her husband had reported the matter to the police, but as has been noticed above, no such complaint was made to Police Station, Theog, rather letter was addressed to police Station, Dudahu. It is none of the case of the complainant that she alongwith her husband had gone to their village in District Sirmaur on 11.12.2017, rather her case is that her husband had gone to her native place on 11th December, 2017 and she was working in the house of Suman. It is none of the case of the complainant that she alongwith her husband had gone to their village in District Sirmaur on 11.12.2017, rather her case is that her husband had gone to her native place on 11th December, 2017 and she was working in the house of Suman. This Court further finds from the record that there is no evidence adduced on record by the prosecution to substantiate the claim of the complainant that she and her husband were given beatings by the bail petitioners on 5.4.2018, when they made an attempt to flee from the spot of detention. There is medical evidence adduced on record by the police suggestive of the fact that complainant and her husband suffered simple injuries on account of the beatings given by the bail petitioners and as such, version put forth by the complainant in this regard appears to be untrustworthy. 10. After having carefully perused the record/status report, this Court finds considerable force in the arguments of Mr. J.L. Bhardwaj, learned counsel representing the bail petitioners that complainant remained in the company of the bail petitioners for almost four months with her own volition and during this period she never made any complaint against the bail petitioners either to the police or to the Gram Panchayat. Though, aforesaid aspect of the matter is to be considered and decided by the Court below on the basis of evidence collected on record by the prosecution, but this Court after having perused the record, sees no reason for custodial interrogation of the bail petitioners, especially when they have joined the investigation in terms of the order passed by this Court. Moreover, nothing is required to be recovered from the bail petitioners at this stage, as has been fairly admitted by the learned Additional Advocate General on the instructions of the investigating officer, who is present in the Court. 11. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed merely on the basis of the suspicion. Till the time guilt of accused is not proved, in accordance with law, they are deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioners is yet to be proved, in accordance with law. 12. Till the time guilt of accused is not proved, in accordance with law, they are deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioners is yet to be proved, in accordance with law. 12. 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 freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon''ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the 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. 13. 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. 14. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; 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." 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, 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. 16. Consequently, in view of the above, order dated 9.04.2018, passed by this Court, is made absolute, subject to the following conditions: a. They shall make themselves 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. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. They shall not leave the territory of India without the prior permission of the Court. 17. It is clarified that if the petitioners misuses their liberty or violates any of the conditions imposed upon them, 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(s) alone. The bail petition(s) stands disposed of accordingly. Copy dasti.