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2021 DIGILAW 148 (HP)

Pinku Kumar v. State Of Himachal Pradesh

2021-03-15

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely Pinku Kumar, who is behind the bars since 22.7.2020, has approached this court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in case FIR No. 24, dated 21.7.2020 under Ss. 376(2)(L), 323 and 506 IPC, registered at Women Police Station Solan, District Solan, Himachal Pradesh. 2. In terms of orders dated 29.1.2021 and 3.3.2021, respondent-State has filed status report. HC Virender No.60 of Women Police Station, Solan has also come present alongwith record, perusal whereof suggests that on 21.7.2020, complainant/victim-prosecutrix, who is deaf and dumb, lodged a complaint at Women Police Station Solan, alleging therein that on 21.7.2020, at 10.00 am, bail petitioner, who happened to be her brother-in-law, sexually assaulted her against her wishes. She further alleged that since at the time of alleged incident, her husband was not at home as he had gone out for work, bail petitioner, taking undue advantage of her loneliness, sexually assaulted her against her wishes, as such, appropriate action in accordance with law, be taken against the bail petitioner/accused. On the basis of aforesaid complaint, FIR detailed herein above came to be lodged against the bail petitioner and since then, he is behind the bars. After completion of investigation, police has filed Challan in the competent Court of law, but yet the charges are to be framed. Before adverting to the factual matrix of the case, it is pertinent to take note of the fact that prior to filing the petition at hand, bail petitioner had earlier approached this Court for grant of regular bail, but the same was dismissed as withdrawn. Now since the DNA profiles of the complainant and the bail petitioner have not matched, fresh prayer has been made on behalf of the bail petitioner for grant of bail, by way of present proceeding. 3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of Challan in the competent Court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, as such, his prayer for grant of bail, deserves outright rejection. Mr. Mr. Bhatnagar, learned Additional Advocate General, further contends that though as per FSL report, DNA profiles of the complainant and bail petitioner have not matched, but that cannot be made basis to conclude innocence, if any, of the bail petitioner, especially when there is overwhelming evidence available on record, suggestive of the fact that on the date of alleged incident, bail petitioner taking undue advantage of the loneliness and innocence of the victimprosecutrix, sexually assaulted her against her wishes. Lastly, Mr. Bhatnagar, learned Additional Advocate General contends that since statement of the victim-prosecutrix is yet to be recorded, it nay not be in the interest of justice to enlarge the bail petitioner on bail, who, in the event of being enlarged on bail, may not only flee from justice but may also cause harm to the victim-prosecutrix. 4. Having heard learned counsel for the parties and perused the material available on record, this court finds that on 21.7.2020, victim-prosecutrix got her statement recorded under S.154 CrPC with Women Police Station Solan, alleging therein that on 21.7.2020, at 10.00 am, she was raped by the bail petitioner, who happened to her brother-in-law, but, interestingly, in her subsequent statement recorded under S.164 CrPC, on 7.8.2020, she alleged that on 21.7.2020, bail petitioner sexually assaulted her against her wishes during day time and, when her husband came back at 2.00 am, in the intervening night of 21st and 22nd July, 2020, she disclosed entire incident to him and thereafter, she lodged the complaint. If the version put forth by the victim-prosecutrix recorded before learned Judicial Magistrate 1st Class is believed, it clearly suggests that during day time, on 21.7.2020, bail petitioner sexually assaulted the victimprosecutrix against her wishes, who in turn informed her husband, at 2.00 am in the night, when he returned from work. It is not understood, when victim-prosecutrix informed her husband about the alleged incident at 2.00 am in the intervening night of 21st and 22nd July, 2020, how the FIR in question could be lodged on 21.7.2020 that too during day time. 5. Faced with aforesaid situation and to rebut the aforesaid argument, learned Additional Advocate General strenuously argued that since the victim-prosecutrix is a deaf and dumb person, it can be inferred and presumed that her statement was not correctly recorded or she was unable to give the exact date. 5. Faced with aforesaid situation and to rebut the aforesaid argument, learned Additional Advocate General strenuously argued that since the victim-prosecutrix is a deaf and dumb person, it can be inferred and presumed that her statement was not correctly recorded or she was unable to give the exact date. But aforesaid submission made by learned Additional Advocate General cannot be accepted for the reason that learned Judicial Magistrate 1st Class, while recoding statement under S.164 CrPC, has categorically mentioned in the report that the victim-prosecutrix deposed in writing that she disclosed entire incident to her husband at 2.00 am in the night. In the aforesaid backdrop, if the aforesaid version of the victim-prosecutrix recorded under S.164 CrPC is analyzed, it creates serious doubt with regard to genuineness and correctness of the version put forth by the victim-prosecutrix. Once factum with regard to alleged incident was disclosed by the victim-prosecutrix to her husband at 2.00 am in the intervening night of 21/22.7.2020, there was no occasion for the Police to lodge FIR on 21.7.2020, that too during day time. It is not the case of the prosecution that the victim-prosecutrix prior to narrating incident to her husband had called the police or disclosed alleged incident to some other family members, who in turn may have informed the police. Apart from above, Victim-prosecutrix, in her statement recorded under S.164 CrPC, deposed that she suffered injury on her leg while she was being subjected to forcible sexual intercourse by the bail petitioner, but there is no mention, if any, of any external or internal injury on the person of the victimprosecutrix in the medical evidence adduced on record by the investigating agency. 6. Dna report adduced on record creates further suspicion with regard to correctness of the story put forth by the prosecution, because it has been categorically concluded in the DNA report that profiles of victim-prosecutrix and complainant do not match. No doubt, DNA report cannot be placed reliance solely to conclude complicity or to rule out the same, rather, same can be read in corroboration with other evidence, but, in the case at hand, version put forth by the victim-prosecutrix becomes highly doubtful for the reasons stated herein above, as such, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial. Otherwise also, Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner. 7. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions. 8. 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. 9. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation,2012 1 SCC 49 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. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held that the 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. 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 various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 12. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed and the bail petitioner is ordered to be enlarged on bail, subject to furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one local surety in the like amount, to the satisfaction of the learned trial Court, 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. 15. The petition stands accordingly disposed of. 16. Copy dasti.