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2021 DIGILAW 312 (HP)

Rakesh Kumar v. State Of Himachal Pradesh

2021-05-11

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Bail petitioner, Rakesh Kumar, who is behind the bars since 30.4.2021, has approached this court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in FIR No. 28, dated 30.4.2021, under Ss. 452, 376 and 506 IPC registered at Police Station Arki, District Solan, Himachal Pradesh. 2. Status report filed in terms of order dated 6.5.2021, reveals that on 30.4.2021, victim-prosecutrix (name withheld) lodged a complaint at Police Station Arki, district Solan, Himachal Pradesh alleging therein that on 26.4.2021, at 11.00 pm, bail petitioner finding her to be alone, sexually assaulted her against her wishes. She alleged that though at the time Ashish of alleged incident, her mother-in-law and younger son, Kumar, were in the house but since bail petitioner had threatened her to falsely implicate her younger son in a case, she kept mum and did not disclose the incident to anybody. Victim-prosecutrix also alleged that prior to the alleged incident, bail petitioner also sexually assaulted her against her wishes on 2-3 occasions. In the aforesaid background, FIR in question, came to be lodged against the present bail petitioner and since 30.4.2021, he is behind the bars. Investigation reveals that prior to the lodging of FIR in question, wife of the bail petitioner had lodged one FIR No. 27, dated 28.4.2021, at Police Station Arki, against son of the victim-prosecutrix, alleging therein that Ashish Kumar, son of the present victim-prosecutrix, sexually assaulted her minor daughter. After having received aforesaid complaint, police lodged FIR No. 27, dated 28.4.2021 against the son of the present victim-prosecutrix under Ss. 376 and 506 IPC and S.4 of the Protection of Children from Sexual Offences Act and since then, said Ashish Kumar is behind the bars. Two days after lodging of FIR No. 27, dated 28.4.2021, by the wife of the present bail petitioner, present victim-prosecutrix lodged FIR in question, against the present bail petitioner, alleging therein that she has been repeatedly sexually assaulted by the bail petitioner against her wishes. Though the Challan in the case at hand is yet to be filed in the competent Court of law, but since the investigation is complete and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings, praying therein for grant of regular bail. 3. Mr. Though the Challan in the case at hand is yet to be filed in the competent Court of law, but since the investigation is complete and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings, praying therein for grant of regular bail. 3. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly acknowledging the factum with regard to completion of investigation, contends that though nothing remains to be recovered from the bail petitioner, but since report of the SFSL, is still awaited, it would 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 tamper with prosecution evidence, as such, his prayer for grant of bail, deserves outright rejection. While fairly admitting the factum with regard to lodging of FIR by the wife of the present bail petitioner against the son of the victim-prosecutrix, Learned Deputy Advocate General submits that the statement of the victim-prosecutrix under S.161 cannot be ignored, wherein she has levelled serious allegations of sexual assault against the present bail petitioner, as such, present bail petition deserves outright rejection. 4. Having heard learned counsel for the parties and perused the material available on record, this court finds that two days prior to registration of FIR in the case at hand, another FIR No. 27, dated 28.4.2021, came to be lodged at Police Station Arki, District Solan, Himachal Pradesh, at the behest of wife of the present bail petitioner, against Ashish Kumar, son of the victim-prosecutrix in the present case, under Ss. 376 and 506 IPC and S. 4 of the Protection of Children from Sexual Offences Act. In the aforesaid FIR, wife of the present bail petitioner alleged that her six year old minor daughter has been sexually assaulted by the son of the present victim-prosecutrix. It is after lodging of aforesaid FIR against son of the victim-prosecutrix that the FIR No. 28, which is subject matter of the present petition, came to be lodged against the present bail petitioner. It is after lodging of aforesaid FIR against son of the victim-prosecutrix that the FIR No. 28, which is subject matter of the present petition, came to be lodged against the present bail petitioner. Though, the allegations levelled against the present bail petitioner in the FIR registered against him at the behest of the victimprosecutrix are to be proved in accordance with law, but having perused the sequence of events, which led to filing of FIR No. 27, there appears to be force in the submission made by learned Counsel appearing for the petitioner that the FIR lodged against his client is a counter-blast to the FIR lodged by wife of the present bail petitioner, against son of the victimprosecutrix, wherein serious allegations of sexual assault have been made against son of the victim-prosecutrix. Though, the victim-prosecutrix, in the case at hand, has alleged that on 26.4.2021, she was sexually assaulted her against her wishes by the present bail petitioner, but it is not understood that what prevented her from lodging FIR/ complaint, if any, qua the alleged incident on 26.4.2021, and why she awaited till 30.4.2021, by which time, FIR No. 27 already stood registered against her son, at the behest of the wife of the present bail petitioner. Status report reveals that after lodging of FIR No. 27, victim-prosecutrix alongwith her relatives had come to the Police Station and at that time, she never disclosed to the police that she has been sexually assaulted against her wishes by the present bail petitioner, who otherwise happens to father of the victim-prosecutrix in FIR No. 27. Interestingly, after lodging of FIR No. 27, wherein son of the victim-prosecutrix came to be named as an accused, victim-prosecutrix, lodged FIR against the present bail petitioner. Moreover, the statements having been made by the victim-prosecutrix under Ss. 161 and 164 CrPC, reveal that the victim-prosecutrix had frequently changed her stand with regard to the location /place where she was allegedly sexually assaulted against her wishes. In her initial statement recorded under S.154 CrPC, she disclosed to the Police that she was sexually assaulted against her wishes on 26.4.2021 in the room of her house. Subsequently, in her statement recorded under S.161 CrPC, she alleged that she was subjected to forcible sexual intercourse by the present bail petitioner in Gaushala. In her initial statement recorded under S.154 CrPC, she disclosed to the Police that she was sexually assaulted against her wishes on 26.4.2021 in the room of her house. Subsequently, in her statement recorded under S.161 CrPC, she alleged that she was subjected to forcible sexual intercourse by the present bail petitioner in Gaushala. Interestingly, both the allegations made by the victimprosecutrix again came to be changed in her statement under S.164 CrPC, wherein the victim-prosecutrix claimed that she was sexually assaulted against her wishes by the present bail petitioner in the fields adjoining to her house. 5. Leaving everything aside, this Court finds that initially the victim-prosecutrix claimed before the Police that she was sexually assaulted against her wishes by the present bail petitioner on a bed in her room but subsequently she changed the statement and claimed that she was sexually assaulted while she was standing. If all the above statements are read in conjunction, there are a lot of contradictions and inconsistencies in the statements of the victim-prosecutrix, which certainly creates doubt with regard to correctness and genuineness of the allegations levelled by the victimprosecutrix against the bail petitioner. Moreover, the medical evidence adduced on record nowhere suggests injuries, if any, suffered by the victim-prosecutrix in the alleged incident. 6. Though, aforesaid aspects of the matter are to be considered by the learned trial Court in the totality of the evidence but having taken note of the 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 guilt of the bail petitioner is yet to be established on record by leading cogent and convincing evidence, as such it would not be fair to curtail his freedom for an indefinite period during trial. 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 curtail the freedom of the bail petitioner for an indefinite period during trial, especially when nothing remains to be recovered from him. 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 curtail the freedom of the bail petitioner for an indefinite period during trial, especially when nothing remains to be recovered from him. Further, the bail petitioner being a local resident of the area, shall always remain available for investigation/trial. Apprehension expressed by learned Deputy 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 40 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. 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 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.50,000/- 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. Copy dasti.