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2021 DIGILAW 62 (HP)

Balwant v. State of H. P.

2021-02-04

ANOOP CHITKARA

body2021
JUDGMENT : ANOOP CHITKARA, J. 1. The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail. 2. Earlier, the petitioner has filed a bail petition before this Court, which was registered as Cr.MP(M) No.1092 of 2020. Vide order dated 18.8.2020, the same was dismissed as withdrawn. 3. The status report does not mention any criminal history. Still, Para 5 of the bail petition says that a case under Section 307 of the IPC has been registered against the petitioner, and the petitioner was convicted on an earlier occasion. His appeal is pending adjudication before this Court, but the sentence is suspended. 4. Briefly, the allegations against the petitioner are that on 29.1.2020, the victim aged 15 years and her mother visited Police Station Rohru and informed the Police about the penetrative sexual assault. Based on these allegations, the Police registered the FIR mentioned above. 5. The police recorded the statement of the victim under Section 161, CrPC. She informed the police that she was a Class-X student, and on the commencement of winter vacation, she had gone to the house of her married cousin's sister (Tau's daughter). On 26.1.2020, she had returned to her home along with her Jija Balwant, husband of her cousin sister. During the evening at about 8.00 p.m., Balwant (bail petitioner) and her father consumed alcohol. She served them dinner. After that, at 9.00 p.m., Balwant entered the room of the victim to sleep, and on that, she made him sleep on the bed, whereas she laid down a mattress for her on the floor. Subsequently, Balwant bolted the door and slept with her on the floor instead of sleeping on the bed. After that, he started fondling her. Upon this, she asked him not to do so, on which he said that nothing would happen. After that, he removed her Pajama and, despite her saying no, established coitus with her. She tried to get rid of his clutches but could not stop him from completing the wrong act with her. On hearing her cries, her father knocked at the window, and then Balwant separated himself from her and opened the door. The victim's father came inside and asked Balwant what he had done, but instead of replying to him, he ran away. On hearing her cries, her father knocked at the window, and then Balwant separated himself from her and opened the door. The victim's father came inside and asked Balwant what he had done, but instead of replying to him, he ran away. The victim's father asked her as to what had happened, and on this, she told him that Balwant had forcibly established sexual relations with her. Her father lost his temper and gave abuses to Balwant and even scolded the victim. She stated that she was afraid and on the next day, when her father was not at home, then she from the phone of her Maasi, informed her mother, who stays separately from her father. The mother of the victim is re-married. Subsequently, her mother and husband came and took them to Jubbal, where she told them about the incident. Due to snow, she could not visit the police station and then on 29.1.2020 visited the police station, which led to FIR registration mentioned above. 6. The police took the victim for her medical examination in Civil Hospital, Rohru, where the doctor obtained genetic material and seized it. The investigator also seized the clothes worn by the victim. Immediately after that, the police arrested the accused and took the accused to the hospital, where his genetic material was also obtained. After that, the investigator sent the said material obtained from the victim and the accused to the laboratory for testing. The laboratory did not detect semen on any of the Exhibits. However, another parcel was sent for DNA to SFSL, Junga, where DNA profiling was not performed because of the absence of semen. 7. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. Mr. Satyan Vaidya learned Senior Advocate argues that the victim had stayed with the petitioner for one month, and in case he had any intention to establish coitus with her. He had ample opportunity to do so. Mr. Vaidya wants to draw this Court's attention to specific documents and statements from his file; however, the same was not filed by him along with the petition. 8. 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 accused is a proven habitual offender. 8. 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 accused is a proven habitual offender. Given his past conduct, the accused is likely to repeat the offense, the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society. REASONING: 9. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 9), this Court after considering the relevant judicial precedents observed that the pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. While considering bail, the Court has to maintain a balance between all stakeholders and safeguard the interests of the victim, the accused, society, and the State. The primary purpose of bail is to secure the presence of the accused to attend the trial. 10. Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed with the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document in the Counsel's brief and not on Court's file. 11. Given the age of the victim, the burden was on the learned counsel for the petitioner to make out a case for bail. Learned counsel for the petitioner has not placed reliance on any of the documents of Section 161 CrPC or recovery memos or statements of other witnesses, which may make this Court believe that the accused did not penetrate in her privates, and to rule out the possibility that the accused did not ejaculate in the vaginal canal or used any latex sheath. Merely because the genetic material did not obtain semen would qualify that the victim was not subjected to penetrative sexual assault. Merely because the genetic material did not obtain semen would qualify that the victim was not subjected to penetrative sexual assault. Because of the reasons that arguments of the learned counsel for the petitioner are based on those documents, which were not found part of the Court's record, this Court cannot form an opinion about the case, and as such, petitioner fails to make out a case for bail. 12. Another reason for denying bail is the criminal history of the accused. The petitioner has mentioned that he was convicted for an attempt to murder, and his sentence was suspended, and he was on bail. The victim is a girl aged 15 years. The possibility of her being threatened by the accused, who is a convict for an attempt to murder, cannot be ruled out and is undoubtedly a factor against the petitioner. Therefore, he is not entitled to bail. Even if the girl's conduct points towards her involvement and participation still whether she participated out of fear of the criminal history of the accused or not cannot be established. On the face of it, it is not a case of romantic love. 13. Furthermore, Mr. Vaidya, Learned Counsel for the petitioner, argued that the petitioner had ample opportunity to have coitus with the victim when she stayed at his house. Still, he did not do so because he had no such intention. However, this Court finds no merit in this argument as the victim's sister was present in the petitioner's house. Even otherwise, it is too early to arrive at such a conclusion. As soon as he saw the opportunity of a victim being alone coupled with her father and himself intoxicated, he committed the heinous act with her. 14. After getting caught by the victim's father, the petitioner's conduct also points towards the petitioner's intention. When the victim's father asked the petitioner what he had been doing, he ran away from the place instead of replying to him. 15. One more reason to deny bail is that the petitioner was intoxicated on the night of the incident. The accused dared to do coitus with the minor in her home when her father was also present. The cumulative reading of these reasons, at this stage, does not entitle the petitioner to any bail. 16. Counsel for the petitioner has also made several other arguments. The accused dared to do coitus with the minor in her home when her father was also present. The cumulative reading of these reasons, at this stage, does not entitle the petitioner to any bail. 16. 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. 17. Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is dismissed with liberty to file a new bail application. 18. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law. 19. 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. 20. I express my gratitude to my interns Adv Apoorva Maheshwari and Adv Sakshi Attri, for excellent perspective. In the given facts, this petition is dismissed.