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Himachal Pradesh High Court · body

2019 DIGILAW 1782 (HP)

Joginder v. State of Himachal Pradesh

2019-11-26

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. Bail petitioner-Joginder, who is behind the bars since 24.10.2018, has prayed for regular bail in FIR No. 250, dated 23.10.2018, under Ss. 376, 452, 342 and 506 IPC registered at Police Station, Sarkaghat, District Mandi, Himachal Pradesh. 2. Sequel to order dated 16.11.2019, ASI Thakur Dass has come present with the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned. 3. Record/Status repot reveals that on 23.10.2018, victim-prosecutrix lodged a complaint at Police Station Sarkaghat, District Mandi, alleging therein that on 23.10.2018, at about 4 pm, when she was alone at her home, bail petitioner, who disclosed his name as Rakesh, gave a phone call on the mobile number of the her husband. She further alleged that when she was talking to her brother over the phone, bail petitioner knocked the door of the room and called her by her name. She alleged that after some time, when she opened the door, nobody was there and as such, she went to cowshed to feed grass to the cattle, but suddenly, bail petitioner, who had hidden himself in the cowshed, forcibly took her to the room and forcibly unclothed her and sexually assaulted her against her wishes. She further alleged that in the meantime, her daughter came on the spot and bail petitioner made an attempt to run away but she gave a blow of shovel on the head of bail petitioner, as a consequence of which, bail petitioner suffered injury. On the basis of aforesaid complaint, FIR in question came to be lodged against the bail petitioner on 23.10.2018 and since 24.10.2018, he is behind the bars. 4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly stating that Challan stands filed in the competent Court of law and nothing remains to be recovered form the bail petitioner, strenuously argued that keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Learned Additional Advocate General, further contended that there is ample evidence available on record that bail petitioner taking undue advantage of victim-prosecutrix being alone, not only unauthorizedly entered the room but forcibly sexually assaulted the victim-prosecutrix against her wishes, as such, petition deserves outright rejection. 5. Having heard learned counsel for the parties and perused the material available on record, especially statements of the victim-prosecutrix recorded under Ss. 154 and 164 CrPC, this Court finds that the victim-prosecutrix had prior proximity with the bail petitioner, who before entering her room, had telephonically called her on the phone of her husband. If statements of the victim-prosecutrix recorded under S.154 and 164 CrPC are read in conjunction juxtaposing each other, there are material contradictions and inconsistencies with regard to sequence of events that allegedly took place on the date of alleged incident. Victim-prosecutrix, in her statement recorded under S.154 CrPC, stated that on the date of alleged incident, her husband was not at home and she was alone in the room and she had received a telephonic call on the mobile of her husband from a person namely Rakesh. In her statement she disclosed that at the time of alleged incident, her daughter was also not in the room. Most interestingly, victim-prosecutrix in her statement recorded under S.154 CrPC, stated that the bail petitioner knocked the door of the room and he was calling the victim-prosecutrix by her name but she did not open the door and thereafter she went to the cowshed for feeding grass to the cattle, when bail petitioner suddenly took her to the room and sexually assaulted her against her wishes. Aforesaid version put forth by the victim-prosecutrix is totally contradictory to her statement given before the Magistrate, under S.164 CrPC. In her statement recorded under S. 164 CrPC, victim-prosecutrix alleged that she had gone to cowshed for feeding grass to the cattle when bail petitioner suddenly appeared and then took her to the room and sexually assaulted her against her wishes. This version is totally contradictory to the statement recorded under S.154 CrPC. 6. Having carefully perused both the aforesaid statements made by victim-prosecutrix, it appears that the victim-prosecutrix had prior proximity with the bail petitioner and she herself let the bail petitioner come inside the room and when her daughter came, case came to be registered against the bail petitioner. 7. 6. Having carefully perused both the aforesaid statements made by victim-prosecutrix, it appears that the victim-prosecutrix had prior proximity with the bail petitioner and she herself let the bail petitioner come inside the room and when her daughter came, case came to be registered against the bail petitioner. 7. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having noticed aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial especially when he has already suffered for more than a year. Apprehension expressed by the learned Additional Advocate General that in the event of being enlarged on bail, bail petitioner may flee from justice or tamper with prosecution evidence, can be best met by putting the bail petitioner to stringent conditions. Otherwise also, Hon'ble Apex Court and this Court have repeatedly held that till the time, guilt of an individual is proved in accordance with, he/she is deemed to be innocent. In the case at hand guilt, if any, of the bail petitioner, is yet to be determined in the totality of the evidence collected on record by the prosecution. 8. 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 can not be curtailed for indefinite period, especially when his/her guilt is yet to be 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. 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. 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. 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." 9. In Sanjay Chandra Versus Central Bureau of Investigation, (2012) 1 SCC 49, Hon'ble Apex Court has held that gravity alone cannot be a 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. 10. 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 also, normal rule is of bail and not jail. Apart from above, 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. 11. Otherwise also, normal rule is of bail and not jail. Apart from above, 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. 11. The Apex Court in Prasanta Kumar Sarkar Versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc. 12. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.50,000/-(Rupees Fifty Thousand) with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned trial Court concerned, 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 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. (e) He shall surrender passport, if any, held by him. 13. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 14. 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 petition alone. The petition stands accordingly disposed of.