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2021 DIGILAW 347 (HP)

Mukesh Kumar v. State Of H. P.

2021-06-18

ANOOP CHITKARA

body2021
JUDGMENT Anoop Chitkara, J. - The petitioner, incarcerating upon his arrest for alluring and raping a girl, has come up before this Court, seeking regular bail on the grounds that since 13.11.2019 he is in judicial custody. 2. Earlier, the petitioner had filed the following bail petitions before this Court: (a) Cr.MP(M) No.1457 of 2020 dismissed on 18.9.2020. (b) Cr.MP(M) No.928 of 2021 dismissed on 31.5.2021. 3. In Para 16 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused. 4. Briefly, the allegations against the petitioner are that on 13th November 2019, the victim gave a written complaint to SHO, Police Station Karsog, informing that Mukesh Kumar, petitioner herein, had raped her in her home on the night of 10th November 2019. Based on such information, the police registered the FIR mentioned above. After that, the victim was brought to a doctor for her medical examination. The examining doctor collected samples from her privates. After that, the investigator produced the victim before the Judicial Magistrate, where on 16th November 2019, she made a statement under Section 164, CrPC. She stated on oath that for the last three years, Mukesh was teasing her. On several occasions, the accused expressed his love towards the victim, but she refused. Wherever he would meet her, he would tease her. She told her mother about this teasing, who further spoke to one cousin, who talked to Mukesh. On this, Mukesh promised not to tease her again. Despite that, he continued to tease her. She further stated that in June 2019, she shifted to Karsog to pursue her studies and started staying in a rented accommodation. Her parents also gave her a mobile phone. From the victim's friend, Mukesh procured her mobile number and started calling her. Initially, he talked sensibly, but later on, he started abusing her. Subsequently, he would call her from unknown numbers. On 6th November, he called her, but the victim told him not to call her at all. On 10th November, he again called the victim. He also abused and threatened her. The victim disconnected the call. After that, the accused called her friend and intimidated her. He told her friend to ask the victim to pick up his call at least once. After that, the victim called Mukesh. On 10th November, he again called the victim. He also abused and threatened her. The victim disconnected the call. After that, the accused called her friend and intimidated her. He told her friend to ask the victim to pick up his call at least once. After that, the victim called Mukesh. On that phone call, the accused told the victim that he would visit her room. The victim told him not to visit the room and made false excuses that she was not at home. However, the accused went to her native place and met her mother. He told her mother that he came here to attend a wedding, so he visited their home. After that, the accused made a call to the victim and said that he is coming there. The victim told him not to come to her room as she is not alone and she is along with her sister, but the accused told her that he would be reaching her room in the morning at around 4.00 a.m. On this, the victim scolded him again that if he visited her room, she would break his legs. At that time, somebody knocked on the door, and she thought it would be a lady from the neighborhood and the moment she unbolted the door, the accused forcibly came inside. He pushed the victim on the bed, gagged her mouth, and threatened her that he would not leave her. He also threatened her to do away with her life. He warned her that in case she would try to scream, then he would kill her. After that, he forcibly removed all her clothes. At that time, the accused was in an intoxicated condition. After that, he raped her, and during the night, he raped her multiple times. In the morning, he told her that he has already taken her nude photographs and also made videos, and in case she would reveal the incident to anybody, he would make it viral. The investigator arrested the accused and also produced her for medical examination. As per the Forensic Science Laboratory report, the DNA profiles of the victim and the accused matched completely. During the investigation, the police recovered the mobile of the accused and extracted the photographs. 5. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. As per the Forensic Science Laboratory report, the DNA profiles of the victim and the accused matched completely. During the investigation, the police recovered the mobile of the accused and extracted the photographs. 5. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. He submitted that the victim is now married and the accused is ready to stay away from her current place of residence. 6. On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner. Another argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society. REASONING: 7. On the face of it, even if it is hypothetically presumed that the accused had visited the victim's home on invitation, but he came under intoxication. The evidence collected by the Police includes the photographs extracted from a mobile phone. Per photographs, the victim's body language reveals hatred and resentment, her posture depicts ravish, her hair unkempt, facial expressions of fear and agony, and eyes speaking of rancor and rage. A perusal of the photographs prima facie reveals the absence of will and consent for any sexual act and accused forcing himself in an inebriated state. The accused not only took her nude and obscene photographs but also forwarded those to her brother. This conduct reflects upon his character, casting him to be a pervert. 8. The arguments of the learned counsel that it was the victim who had called him and that there is no evidence that the accused bolted the door from inside are inconsequential at the stage of bail. The relevancy of the arguments is subject to verification at the cross-examination stage. Ld. Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the accused. 9. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law. 10. Any detailed analysis of the evidence may prejudice the case of the prosecution or the accused. 9. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law. 10. 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. 11. Given above, In the facts and circumstances peculiar to this case, the petition is dismissed. However, the petitioner shall be at liberty to file a new petition after recording of the victim's statement on oath in the trial.