Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 572 (HP)

Manpreet Singh v. State of Himachal Pradesh

2023-12-20

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The victim made a complaint to the police stating that she was in touch with accused no. 1-Raman Singh. He called her on 16.4.2019 at Café 69, Sector-7, Kurukshetra. Thereafter, he called her to various other places and he started proclaiming that he wanted to marry her. The petitioner and Raman came to Kangra on 16.2.2020. They took her to a hotel where accused no. 1 entered into sexual relations with the victim without her consent. The accused no. 2, the present petitioner, prepared the obscene videos and took obscene photographs of the victim. The accused no. 1 started blackmailing the victim by saying that he would make the photographs and videos viral. He started calling the victim to his house. He maintained sexual relations with the victim at Kurukshetra in different hotels and in the house of accused no. 2-present petitioner at Mohali and Manimajra. Accused No.1 also took money from the victim on the threat of making the video and photographs viral. On 2.9.2023, accused no.1 called the victim to the house of accused no.2 (the present petitioner) at Manimajra, where both of the accused maintained sexual relations with her by administering some intoxicant to her. The victim narrated the incident to her parents. The matter was reported to the police. The police registered zero FIR which was subsequently transferred to Police Station Kangra, where the present FIR was lodged. 2. The petitioner filed the present petition seeking bail. It has been asserted that the petitioner was never involved in the commission of any offence and he has no criminal antecedents. He has no relationship with the victim in any manner. He is the brother-in-law of the main accused Raman Singh. The victim had friendly relations with Raman Singh since 2019. The mother of the main accused discovered that the victim had visited the house of Raman at Manimajra, to which she objected and told the victim that her (victim’s) visit was against the moral values of her (mother of the accused no. 1’s) family. She asked them to get married. The petitioner was not present in the house of Raman Singh on 2.9.2023 and he was present at Kurukshetra. The parents of the victim threatened the mother of accused no. 2 with dire consequences. The victim concocted a false story implicating the petitioner and the accused no. 1’s) family. She asked them to get married. The petitioner was not present in the house of Raman Singh on 2.9.2023 and he was present at Kurukshetra. The parents of the victim threatened the mother of accused no. 2 with dire consequences. The victim concocted a false story implicating the petitioner and the accused no. 1 by making false allegations of rape and preparing her obscene videos and taking her obscene pictures. The victim and her family members threatened the accused no. 1 on 11.102023 and snatched the electronic devices. They gave beatings to accused no. 1 and his mother. Accused no. 1 called the petitioner. The petitioner went to the workshop and contacted the accused No.1 and his mother. A complaint under Sections 107 and 151 of Cr.P.C. was registered at Police Station IT Park, Chandigarh. There was no mention of the sexual assault in this complaint. The accused no. 1 married on 15/16th October 2023. The victim lodged the zero FIR thereafter. The petitioner is the sole breadwinner of the family. The victim is aged 21 years. The prosecution story is false and no case is made out against the petitioner. The FIR was lodged after the lapse of two years. No incriminating material is available with the petitioner. The petitioner would abide by the terms and conditions which may be imposed by the Court. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 3. A status report was filed reproducing the contents of the FIR. It was asserted that the statement of the victim was recorded in the Court of Learned ACJM, Kangra. The victim identified the room in the hotel and on verification of the record; the names of the victim and the accused were found in the register of the hotel. These entries were seized. The police arrested the main accused Raman Singh on 30.10.2023 and seized his laptop. The mobile phones of Raman Singh and the victim were sent to RFSL to retrieve the data contained therein. The call details of Raman Singh, petitioner and the victim have been obtained. The victim was found to be in touch with Raman Singh and the petitioner as per call details. The police searched for the present petitioner but could not apprehend him. The call details of Raman Singh, petitioner and the victim have been obtained. The victim was found to be in touch with Raman Singh and the petitioner as per call details. The police searched for the present petitioner but could not apprehend him. The police have yet to recover the mobile phone and the laptop containing the obscene videos and photographs of the victim. The custodial interrogation of the victim is required in the present case. Hence, it was prayed that the present petition be dismissed. 4. I have heard Mr. Yashveer Singh Rathore, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State. 5. Mr. Yashveer Singh Rathore, learned counsel for the petitioner submitted that the contents of the FIR are false. No complaint was made for two years and even for one month and ten days after the incident dated 2.9.2023. The petitioner was not present at Manimajra and the receipts of the Toll Plaza (Annexure P-3) establish this fact. The victim is major and her silence for two years falsifies her version. A complaint was filed under Sections 107 and 151 of Cr.P.C. on 11.10.2023 and no complaint of sexual assault was made in it. Such a complaint was made for the first time on 13.10.2023, which shows that it is an afterthought and unreliable. He has relied upon the judgment of the Hon’ble Supreme Court in Beerbal Prasad Rajoriya vs. State of Madhya Pradesh, MANU/SC/1105/2022 and the judgment of this Court in Criminal Appeal No. 217 of 2018, titled State of H.P. Vs. Ved Prakash and others decided on 01.09.2023 in support of his submissions. 6. Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State submitted that the petitioner is involved in the commission of heinous offence. Specific allegations were made against the petitioner and recovery of the laptop and mobile phone is yet to be effected. Custodial interrogation of the petitioner is required for effecting the recovery. Therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 8. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed: “67. 7. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 8. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed: “67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 9. The FIR specifically mentions that the accused no. 2, the present petitioner had prepared obscene photographs and videos of the victim, which were used for blackmailing her and calling her to different places by accused no.1. It further mentions that on 2.9.2023, petitioner and accused no. 1 had raped the victim after administering some intoxicant to her. These averments are to be accepted as correct at this stage. 10. It was submitted that the long silence of the victim for two years shows her consent. This submission is not acceptable. There is a presumption under Section 114-A of the Indian Evidence Act regarding the absence of consent when the victim states that she had not consented. It was laid down by the Hon’ble Supreme Court in Naim Ahamed vs. State (NCT of Delhi), 2023 SCC OnLine SC 89 that Section 114A of the Indian Evidence Act provides that when the victim states in a case of rape that she had not consented, the Court has to presume that there was no consent. It was laid down by the Hon’ble Supreme Court in Naim Ahamed vs. State (NCT of Delhi), 2023 SCC OnLine SC 89 that Section 114A of the Indian Evidence Act provides that when the victim states in a case of rape that she had not consented, the Court has to presume that there was no consent. It was observed:- “10. It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime - ‘Rape’, the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act. As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.” 11. It was laid down by the Hon’ble Supreme Court in Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615 , that in view of Section 114-A when the victim says that she had not consented, the Court has to presume the absence of the consent. It was observed:- “15. In this connection, reference may be made to the amendment made in the Evidence Act. Section 114-A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. It was observed:- “15. In this connection, reference may be made to the amendment made in the Evidence Act. Section 114-A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114-A reads as under: "114-A. Presumption as to the absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent." 16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her." 12. This judgment was followed in Anurag Soni Vs State of Chhattisgarh, 2019 (13) SCC 1 . Therefore, in view of the binding precedents of the Hon’ble Supreme Court, the Court cannot infer consent, when the victim stated that she had not consented to the sexual intercourse. 13. The petitioner has relied upon the details of Toll Plaza dated 2.9.2023, in which the vehicle bearing registration No. CH01-BX-4019 has been shown to have crossed the Toll Plaza on 02-09-2023 at 09:03:05 and 23:37:15 to establish that he was not present at Manimajra. This document will not assist the petitioner at this stage. First, there is no evidence that this vehicle was owned by the petitioner. This document will not assist the petitioner at this stage. First, there is no evidence that this vehicle was owned by the petitioner. Second, there is no evidence that the petitioner was travelling in it. Thus, this document cannot be used to falsify the specific statement made by the victim in the FIR. 14. It was submitted that there was a delay in reporting the matter to the police which will make it highly improbable that the incident as asserted had taken place. Reliance was placed upon the judgment passed by this Court in Ved Prakash (supra), wherein it was held that in case of delay, the Court is required to see the contents of the FIR more carefully. There can be no dispute with this proposition of law. At the same time, it cannot be ignored that mere delay in sexual offence cases is not always fatal. The question is one of appreciation of the evidence keeping in mind the delay in reporting the matter to the police. It was laid down by the Hon’ble Supreme Court in Satpal Singh v. State of Haryana, reported in (2010) 8 SCC 714 that in sexual offences, the honour of the family is involved and the delay should not be used to discard the prosecution case. It was observed: “13. In a rape case, the prosecutrix remains worried about her future. She remains in a traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of society's attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. The family remains concerned about the honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences. (Vide Karnel Singh v. State of M.P. (1995) 5 SCC 518 : AIR 1995 SC 2472 ; and State of Punjab v. Gurmeet Singh (1996) 2 SCC 384 : AIR 1996 SC 1393 ). 14. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. 14. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [vide State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582 ]. 15. However, no straight jacket formula can be laid down in this regard. In the case of sexual offences, the criteria may be different altogether. As the honour of the family is involved, its members have to decide whether to take the matter to court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that “ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information Report in a case of this nature is a normal phenomenon” [vide Satyapal v. State of Haryana (2009) 6 SCC 635 : AIR 2009 SC 2190 ].” 15. Similarly it was held in State of Himachal Pradesh v. Prem Singh (2009) 1 SCC 420 : AIR 2009 SC 1010 , that the delay in sexual assault cannot be equated to other offences. It was observed:— “So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. It was observed:— “So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR.” 16. The Bombay High Court noticed the condition of a rape victim in State of Maharashtra v. Savala Sagu 1997 Cri LJ 786 and held that the victim can report the matter after overcoming the trauma of rape. It was observed: “15. We wish to emphasise that any unmarried girl on account of her bashfulness and the circumstance that not only her own honour but that of her family was at stake, would have been extremely reluctant and loath to disclose to the police, her traumatic experience of being raped. It is only after an efflux of time when she is able to get over a part of her trauma, will she think of lodging the FIR. In our view, no mathematical time limit in lodging an FIR can be fixed in cases of rape. Courts in such cases should adopt a realistic approach rather than one which is unimaginative and theoretical. After all our conduct in life is governed by brass realities.” 17. In the present case, the victim was an unmarried girl. She was being threatened with obscene videos and pictures. She could have complained after overcoming the fear. Hence, the delay in the present case cannot be held to be fatal. 18. Reliance was placed upon the judgment of the Hon’ble Supreme Court in Beerbal Prasad Rajoriya (supra) on behalf of the petitioner; however, the Hon’ble Supreme Court had granted the bail due to delay and the “attending circumstances” which shows that the bail was granted in the peculiar facts of the case and the order cannot be treated as a precedent. Thus, no advantage can be derived from this judgment. 19. Thus, no advantage can be derived from this judgment. 19. The petitioner has also relied upon the copy of the affidavit executed by him, in which he had stated that the images or videos are not contained in the electronic form in his device or mobile phone and if these are circulated, he is responsible. This affidavit is in the nature of an admission made by a person in his favour and will be inadmissible because of section 21 of the Indian Evidence Act and no advantage can be derived from the same. 20. The victim stated that the present petitioner had taken her obscene photographs and prepared her obscene videos. The recovery of the photographs and videos is essential to determine the truthfulness or otherwise of the prosecution case. Since the recovery of the obscene photographs and videos has not been effected, hence, the prayer of the prosecution for the custodial interrogation is justified. It was laid down by Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed:- “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- orientated than questioning a suspect who is well- ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.” 21. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032 wherein it was observed: “13. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032 wherein it was observed: “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals. But, it must be also kept in mind, that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 22. The petitioner has sought the pre-arrest bail in a rape case. It was laid down by the Hon’ble Supreme Court in MS. X versus State of Maharashtra and another, 2023 STPL 3386 SC, [2023(2) Crimes 66 (SC)] that in case of rape, the pre-arrest bail should not be granted. It was observed:- 22. Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and gravity of the alleged offence has been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored. The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6th September 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent No.2/accused for granting him anticipatory bail. (Emphasis supplied) 23. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent No.2/accused for granting him anticipatory bail. (Emphasis supplied) 23. Therefore, in view of the above, the petitioner is not entitled to pre-arrest bail. Consequently, the present petition fails and the same is dismissed. 24. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.