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2023 DIGILAW 143 (HP)

Jasveer Singh Sodi v. State of HP

2023-03-14

SANDEEP SHARMA

body2023
JUDGMENT : Sandeep Sharma, J. Sequel to orders dated 6/7.3.2023, whereby above named bail petitioners, apprehending their arrest, were enlarged on bail in Case FIR No. 9/23, dated 19.2.2023, registered at Women Police Station Solan District Solan, under Sections 498A, 376-D, 506 and 34 of IPC, respondent-state has filed the status report, SI Swaroop Kumar, PS Sadar Shimla, H.P., has also come present with the records. Records perused and returned. 2. Close scrutiny of record/status report made available to this Court reveals that on 19.2.2023, complainant (name withheld) lodged a complaint at Women Police Station, Solan, alleging therein that she has been sexually assaulted against her wishes by her husband Ajaybir Singh, father in law Jasveer Singh Sodi and domestic help Sahib Singh (bail petitioners). She alleged that she is legally wedded wife of bail petitioner namely Ajaybir Singh and she alongwith her husband had purchased property jointly at Deoghat after having obtained loan from Union Bank of India Branch Solan in the years 2013 and 2016. She alleged that loan has been repaid and she alongwith her husband and children has been residing in the said house. She alleged that in the month of January, 2022, she alongwith her daughter, visited the house of her son namely Arjunbir Singh in Sector-10-D Chandigarh, but when she came back to Deoghat, she found that her valuable belongings i.e. gold, diamond jewellery, cash, valuable clothes and all other daily routine articles were stolen. She further alleged that they were not allowed to enter the house by her husband Ajaybir Singh Sodi, who disclosed her that he has already obtained divorce from her, from the competent court of law at Firozepur. She alleged that after the aforesaid incident, she again visited the house at Deoghat on 17.8.2022, with the intervention of her relatives and started living on the top floor of the house. She alleged that her husband, father in law and domestic help i.e. present bail petitioners, reside in the same house at Deoghat. She alleged that on 17.8.2022, all the accused under the influence of liquor armed with deadly weapons entered her portion and started extending threats. She alleged that accused Jasbir Singh, father in law of the complainant not only behaved indecently, but touched her private parts. She alleged that on 17.8.2022, all the accused under the influence of liquor armed with deadly weapons entered her portion and started extending threats. She alleged that accused Jasbir Singh, father in law of the complainant not only behaved indecently, but touched her private parts. She also alleged that her husband Ajaybir Singh instigated his domestic help to remove her cloths and thereafter all the three bail petitioners not only behaved indecently, but tired to commit unnatural sex. She also alleged that her husband Ajaybir Singh extended threats to her and her daughter and asked to handover relinquishment deed of the house at Deoghat (Solan) as well as house of 140 P situate in the street of Sethi Ice Factory Ferozepur Cantt., but when she refused, all the accused started to rape her in the presence of her daughter. She alleged that her daughter though raised hue and cry, but none came to her rescue. She alleged that after attempting rape/unnatural sex, all the accused ran away from her portion extending threats that in case she discloses the incident to anyone, they would make the video of the incident viral. She alleged that on account of aforesaid incident, she went into depression and attempted to commit suicide but god saved her. She also alleged that her husband is involved in many illegal activities and oftenly, brings call girls to his house. In the aforesaid background, FIR as detailed herein above, came to be lodged against the petitioners, Appending their arrest, all the petitioners approached this Court in the instant proceedings and vide orders dated 6/7.3.2023, they were ordered to enlarged on interim bail with direction to make themselves available for investigation before the investigating agency. 3. Mr. Vishal Panwar, learned Additional Advocate General, on the instructions of Investigating Officer present in the Court, fairly states that pursuant to order dated 6/7.3.2023, all the petitioners joined the investigation and rendered full cooperation. He states that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve any leniency and as such, prayer made on their behalf for grant of bail deserves outright rejection. He states that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve any leniency and as such, prayer made on their behalf for grant of bail deserves outright rejection. While making this court peruse statement of victim-prosecutrix recorded under Section 164 Cr.PC, learned Additional Advocate General states that petitioners have been rightly booked under Section 376 (D) and as such, there is no force in the submission of the petitioners that they have been falsely implicated. Learned Additional Advocate General states that it may not be in the interest of justice to enlarge the bail petitioners on bail, who in the event of being enlarged on bail may not only flee from justice, but may again cause harm to the victimprosecutrix, who resides on the top floor of the building where accused are living. 4. Mr. Rajiv Chauhan, learned counsel appearing for the complainant submits that victim-prosecutrix is being harassed continuously for years together on account of her bringing less dowry and not signing the relinquishment deed. He submits that at the first instance, bail petitioner namely Ajaybir Singh, obtained decree of divorce by mutual consent fraudulently and thereafter again started living with victimprosecutrix, but when she refused to succumb to his demands, he in connivance with his father and domestic help not only gave beatings to the victim-prosecutrix, but also raped her against her wishes. He states that in the event of petitioners being enlarged on bail, there would be great threat to life of the victim-prosecutrix and as such, their prayer for grant of bail may be rejected outrightly. 5. Having heard learned counsel for the parities and perused material available on record, this Court finds that as per statement of victim-prosecutrix recorded under Section 164 Cr.PC, she was subjected to forcible rape and unnatural sex on 17.8.2022, but FIR detailed herein above was lodged on 19.2.2023. There is no explanation, if any, on record qua the delay of approximately six months in lodging the FIR. There is no explanation, if any, on record qua the delay of approximately six months in lodging the FIR. Though it has been claimed by the victim-prosecutrix that after the alleged incident, she remained under depression and tried to commit suicide, but once alleged rape and unnatural sex was committed upon her in the presence of her daughter, who is major, it is not understood that what prevented the daughter of the victim-prosecutrix to lodge complaint at Police Station at the first instance. True it is that there is no reason for this Court to disbelieve the version putforth by the victim-prosecutrix that after the alleged incident, she was in depression, but definitely, her daughter, who is major, could always report the matter to the police or to other relatives. In the case at hand, matter never came to be reported to the relatives or to the police. Suddenly, after six months of the alleged incident, FIR detailed herein above, containing allegations, as have been taken note herein above, came to be lodged against the petitioners. Status report placed on record clearly reveals that there is property dispute inter-se victim-prosecutrix and the bail petitioners and they have filed various cases against each others in the different courts of law. Otherwise also, factum with regard to property dispute stands duly admitted by the victim-prosecutrix in her statement recorded under Section 164 Cr.PC, wherein she stated that on the date of the alleged incident, she was being compelled by the bail petitioners to sign on the relinquishment deed. Documents placed on record by the bail petitioners suggest that marriage inter-se bail petitioner Ajaybir Singh and victim-prosecutrix was dissolved by way of mutual consent on 24.11.1997 (Annexure P1). After 27 years of passing of order dated 24.11.1997, suddenly, victim-prosecutrix filed an application for setting aside judgment and decree dated 24.11.1997, passed by the learned District Judge Firozepur, thereby accepting joint prayer made by the petitioner Ajaybir Singh and victim-prosecutrix under Section 13 (B) of the Hindu Marriage Act for dissolution of marriage. Interestingly, if the contents of the aforesaid application are read in its entirety, it completely falsifies the stand taken by the victim-prosecutrix while making statements under Sections 164 and 154 Cr.PC. Interestingly, if the contents of the aforesaid application are read in its entirety, it completely falsifies the stand taken by the victim-prosecutrix while making statements under Sections 164 and 154 Cr.PC. Though victim-prosecutrix in her statements recorded under Sections 164 and 154 Cr.PC claimed that in the month of June, 2022, her valuable belongings were stolen from her house at Deoghat and she was not allowed to enter the house of the bail petitioners, but in her petition filed before the learned District Judge, Ferozepur for setting aside order dated 24.11.1997, she claimed that since the day of the marriage, she as well as her husband have been residing together in one room and have been treating each other as husband and wife. She has also stated in the application that she and her husband have been cohabiting with each other till date and they never resided separately. In para-7 of the aforesaid application, she has stated that she alongwith her husband and daughter went to Dubai in the month of February, 2021 and resided in a hotel called Royal Escort. If the contents of this application are read in its entirety, an attempt has been made by the victim-prosecutrix to carve out a case before the learned District Judge Firozepur that the relation inter-se her and her husband are very cordial and they have been leading a happy life as husband and wife. Aforesaid application was filed on 24.11.2022, as is evident from copy of order passed by the Principal Judge, Family Court, Ferozepur, Punjab. In an application for setting aside decree of divorce by way of mutual consent, on one hand, victim-prosecutrix claimed that she is having very good and cordial relations with her husband, but on the other hand, while making statements under Sections 164 and 154 Cr.PC, she alleged that in the month of August, 2022, she was not only given beatings, but was raped in the presence of her daughter by the petitioners. Once relationship inter-se bail petitioner Ajaybir Singh and victim-prosecutrix was cordial on 24.11.2022 and till then, they had been living as husband and wife, it becomes difficult for this court to accept the allegation leveled by the victim-prosecutrix qua the incident allegedly happened in August, 2022. 6. Once relationship inter-se bail petitioner Ajaybir Singh and victim-prosecutrix was cordial on 24.11.2022 and till then, they had been living as husband and wife, it becomes difficult for this court to accept the allegation leveled by the victim-prosecutrix qua the incident allegedly happened in August, 2022. 6. Though question of delay, if any, in filing application for setting aside decree of divorce passed in the year, 1997 is to be decided by the court at Ferozepur, but certainly that fact creates serious doubt on the correctness and genuineness of the story putforth by the victim-prosecutrix while lodging complaint against the bail petitioners. As per report, victimprosecutrix and bail petitioners had been fighting with each other over a property left by the mother in law of the victim-prosecutrix. As per record, mother in law of the victim-prosecutrix has bequeathed her property in the name of her grandson, who at present resides in abroad. As per own statement of victim-prosecutrix, there was dispute inter-se her and other family members qua the ownership and possession of house at Deoghat and subsequently, on the intervention of the relatives, she was given one portion of the house at Deoghat, where the alleged incident happened. Most importantly, after having lodged report, victim-prosecutrix refused to undergo medical test, which further creates doubt about the correctness of the allegations leveled by the victim-prosecutrix. Photos posted on facebook account of victim-prosecutrix clearly reveals that on the date of alleged incident she was enjoying with her friends and family members. 7. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but having noticed aforesaid glaring aspects of the matter coupled with the fact that nothing remains to be recovered from the bail petitioners, there appears to be no justification to send the bail petitioner in judicial custody during trial. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time, guilt of his/her is not proved in accordance with law. In the case at hand, guilt if any of the bail petitioners is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, their freedom cannot be curtailed for an indefinite period during trial. In the case at hand, guilt if any of the bail petitioners is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, their freedom cannot be curtailed for an indefinite period during trial. Apprehension expressed by the learned Additional Advocate General that in the event of petitioners being enlarged on bail, they may flee from justice, can be best met by putting the bail petitioners to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 8. Needless to say, 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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. See: Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 49 and Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 . 9. Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. 10. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. 10. Consequently, in view of the above, orders dated 6/7.3.2023, passed by this Court, are made absolute, subject to the following conditions: a. They shall make themselves 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. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. They shall not leave the territory of India without the prior permission of the Court. e. They shall hand over their passports to the investigating Agency. 11. It is clarified that if the petitioners misuse their liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 12. Any observations made hereinabove shall not be construed to be a reflection on the merits of the main case and shall remain confined to the disposal of these applications alone. The bail petitions stand disposed of accordingly. 13. The petitioners are permitted to produce copy of order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.