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Himachal Pradesh High Court · body

2020 DIGILAW 213 (HP)

Vicky Kumar v. State of Himachal Pradesh

2020-03-07

ANOOP CHITKARA

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JUDGMENT : Anoop Chitkara, J. The petitioner, who is under incarceration from 23rd May 2019, i.e., for more than thirteen months, for having been arrested for alluring a minor girl less than eighteen years of age, to elope with him and after that committing sexual intercourse with her, which amounts to statutory rape, the girl being aged about 17 years and 7 months, has come up before this Court, seeking regular bail. 2. Based on a First Information Report (FIR), the police arrested the petitioner on 23.5.2019, in FIR No.11/2019, dated 8.4.2019, registered under Sections 363, 366, 368, 376 of Indian Penal Code, 1860, (IPC) and Section 4 of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act), in Women Police Station, Solan, District Solan, Himachal Pradesh, disclosing cognizable and non-bailable offences. 3. Earlier, the petitioner filed a petition under Section 439 CrPC before Special Judge, Solan, HP. However, vide order dated 3.12.2019, the Court dismissed the petition, primarily because the prosecutrix was a minor being 17 years, 7 months and 13 days and that her DNA matched with the accused. 4. I have read the Police report(s) and heard Mr. O.C. Sharma, learned Advocate for the petitioner and Mr. Nand Lal Thakur, Ld. Additional Advocate General for the State of H.P. FACTS: 5. The allegations in the First Information Report and the gist of the evidence collected by the Investigator are: a) That the father of the victim informed the Women Police Station, Solan that his daughter who was a minor and student of Class-10, left from home on 8.4.2019. She had told the neighbours that she was going for picnic. On checking her luggage, the parents found her documents etc. missing. The informant further told the Police that even earlier she had left home and they had brought her back from Jammu. They suspected that Vicky @ Ankush, petitioner herein had taken her along. After that, the Police recovered the victim on 23.5.2019 from a rented premises in Jammu. Subsequently, the Police brought her to Solan where she was taken to Regional Hospital for her medical examination. b) On 24.5.2019, Doctor at Regional Hospital, Solan conducted Medico Legal Examination of the victim, who noticed her hymen to be torn on multiple sites, but did not notice injury anywhere on her person. Subsequently, the Police brought her to Solan where she was taken to Regional Hospital for her medical examination. b) On 24.5.2019, Doctor at Regional Hospital, Solan conducted Medico Legal Examination of the victim, who noticed her hymen to be torn on multiple sites, but did not notice injury anywhere on her person. c) The Doctor also collected swabs from her privates and after preserving the same handed over to the Police , who sent the same for forensic examination. d) Subsequently, after arrest of the accused, Dr. obtained DNA profile of the accused. The State Forensic Science Laboratory, on conducting DNA examination, opined that ?Two autosomal STR DNA profiles, pertaining to a male individual and a female individual were obtained from Exhibit-10 (Underwear, Vicky Kumar Takia). Of these two DNA profiles; the DNA profile pertaining to a male individual Showed complete match with the autosomal STR DNA profile obtained from Exhibit-11 (blood on FTA, Vicky Kumar Takia), while the other Partial DNA profile pertaining to a female individual showed match at 16 loci with the autosomal STR DNA profile obtained from Exhibit- 6 (blood on FTA, victim).? PREVIOUS CRIMINAL HISTORY 6. The Counsel for the petitioner, on instructions, states that there is no previous criminal history, and the status report does not dispute it. SUBMISSIONS: 7. The learned counsel for the bail petitioner submits that the allegations are false and concocted. He further submits that the victim did not support the case of the prosecution, while recording of her statement during the trial. 8. On the contrary, Mr. Nand Lal Thakur, Additional Advocate General, contended that the victim reiterated her allegations on oath in her statement under Section 164 CrPC, which is a sufficient prima facie evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions. ANALYSIS AND REASONING: 9. Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. 10. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. 10. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 , a Constitutional bench of Supreme Court holds in Para 30, as follows: ?It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.? 11. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240 , Supreme Court in Para 16, holds: ?The delicate light of the law favours release unless countered by the negative criteria necessitating that course.? 12. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42 , a three-member bench of Supreme Court holds: ?18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so.? 13. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches would be detailed and paintings with a few strokes. 14. In the present case, a perusal of evidence taken on record so far leads to the following inference: a) In the present case, trial has commenced and the statement of the victim stands recorded, on oath. After recording of the statement of the victim, the petitioner filed an application before the trial Court, which was dismissed as mentioned above. b) Aggrieved by the rejection of the bail, the petitioner has come up before this Court, on the ground that the victim did not support the case of the prosecution and at that time when she made statement on oath, she had attained the majority. c) Without discussing the evidence, it would be appropriate to mention the statement of the victim, the relevant portion of which is extracted as follows:- ?Stated that my date of birth is 26.08.2001. I was knowing the accused Vicky Kumar for last one and half years. We became friends through Facebook. Thereafter, we started exchanging telephone calls. On 8.04.2019, I went alone to Chandigarh. I met the accused Vicky Kumar at Chandigarh. Thereafter, we went together to Katra (J&K). We stayed for the night in room No.301 at New Vivek Hotel Main Bazar, Katra. On the night on 8.04.2019, we established sexual relations voluntarily. On next day morning, we visited Mata Vaishno Devi Shrine. We stayed together for 2-3 days at the Shrine. Thereafter, we went to the house of the accused Rajinder Kumar (father of the accused Vicky) at Jammu. We stayed there till 23.05.2019. The accused Rajinder Kumar was insisting to inform my parents about my presence in his house, but I refused for the same. The accused Vicky Kumar did not establish sexual relations during the stay at Jammu.? 15. While deciding bail, this Court cannot discuss the evidence threadbare. We stayed there till 23.05.2019. The accused Rajinder Kumar was insisting to inform my parents about my presence in his house, but I refused for the same. The accused Vicky Kumar did not establish sexual relations during the stay at Jammu.? 15. While deciding bail, this Court cannot discuss the evidence threadbare. Without commenting on the merits of the case, the fact that the accused is in jail for more than one year coupled with the fact that the victim after attaining the age of majority, stated on oath that the accused did not establish any sexual relations with her and further stated in her cross-examination that she had voluntarily left her home and that the petitioner had asked her to return to her home, but she did not accede to his request, would make out a case for bail. 16. The petitioner is a permanent resident of Village and P.O. Logarh, Tehsil Dhillon, District Ludhiana, Punjab, therefore, his presence can always be secured. 17. Further incarceration of the accused during the period of trial is neither warranted, nor justified, or going to achieve any significant purpose. 18. Without commenting on the merits of the evidence collected so far, considering all the reasons mentioned above, the victim's credibility makes out a case of bail for the present petitioner. Given above, coupled with the fact that the accused is in judicial custody for more than one year, the petition is allowed. 19. The report under Section 173(2) CrPC does not restrict the police's powers to investigate further by following the law. Needless to say, that the Prosecution has all the rights of further investigation under S. 173(8) CrPC, following the law. It is still open for the Investigator to recover the deleted photographs from the mobile through Forensic expert and to investigate that who had answered the call at midnight by making an appropriate application before the concerned Court following the law, if she thinks appropriate. 20. To ensure that he does not get an opportunity to intimidate or stalk the victim, while on bail and the Court is putting the stringent conditions and this bail shall be subject to the strict terms. 21. 20. To ensure that he does not get an opportunity to intimidate or stalk the victim, while on bail and the Court is putting the stringent conditions and this bail shall be subject to the strict terms. 21. Given the above reasoning, the Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 10,000/, (INR Ten thousand only), to the satisfaction of the Trial Court. The petitioner shall also furnish one surety for INR 5,000 (INR Five thousand only), to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court, which is exercising jurisdiction over the concerned Police Station where FIR is registered. Trial Court. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order: a) The petitioner to give security to the concerned Court(s)/ Investigating Officer, for attendance on every date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC. b) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available). c) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree treatment, indecent language etc. d) The petitioner shall not influence, threaten, browbeat, or pressurize the witnesses and the Police officials. e) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence. e) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence. f) Once the trial begins, the appellant shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC. g) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through SMS/ WhatsApp message/ EMail/ or any other similar medium, by the Court. h) In the first instance, the Court shall issue summons and may inform the Petitioner about such summons through SMS/ WhatsApp message/ E-Mail. i) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-Mail. j) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper. k) In case of Non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever. l) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within 10 days from such 487 modification, to the police station of this FIR, and also to the concerned Court. m) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so. n) During the trial's pendency, if the petitioner commits any offence under where the sentence prescribed is seven years or more, then the State may move an appropriate application for cancellation of this bail. o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner, and even the concerned trial Court shall be competent to cancel the bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC. p) The learned counsel for the petitioner, as well as the attesting officer, shall explain the conditions of this bail to the petitioner. q) The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any other social media, nor roam around the victim's home. The petitioner shall not contact the victim. r) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of acquittal in this case. 22. r) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of acquittal in this case. 22. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition. 23. The officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in vernacular. 24. The petitioner undertakes to comply with all the directions given in this order. Furnishing of bail bonds by the petitioner is the acceptance of all such conditions. 25. On the reverse page of the personal bonds and the officer attesting the personal bonds shall ascertain the identity of the bail-petitioner, through these documents. 26. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on her/his furnishing bail bonds in the terms described above. 27. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law. 28. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner. 29. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. 30. The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner and the Learned Advocate General if they ask for the same. 31. The SHO of the concerned Police Station or the Investigating Officer shall send a copy of this order, preferably a soft copy, to the victim, at the earliest. 32. In return for the freedom curtailed for breaking the law, the Court believes that the accused shall also reciprocate through desirable behavior. 33. While deciding the propositions of law involved in this matter, I have considered all the similar orders/judgments pronounced by me. Thus, this order is more comprehensive and up to date. Consequently, given above, all previous judgments/orders passed by me, where the proposition of law was similar, or somewhat similar, be not cited as precedents. The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.