Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 336 (HP)

Shankar Lal v. State of Himachal Pradesh

2025-03-10

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. 1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No. 24 of 2024, dated 05.12.2024, for committing offences punishable under Sections 64(2), 65(2), and 351(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS) and Section 6 of the Protection of Children from Sexual Offences Act (‘POCSO Act’) at Women Police Station BCS, Shimla, H.P. The petitioner isinnocent. He was falsely implicated due to a property dispute between the families of the victim and the petitioner. The victim’s maternal grandfather gave the petitioner's father five bighas of land, leading to a dispute. The petitioner has roots in the society and he is not likely to abscond. He is the sole breadwinner of the family. He would abide by all the terms and conditions, which the Court may impose. Hence the petition. 2. The petition is opposed by filing a status report asserting that the victim’s mother made a complaint to the police stating that she had visited her parental home on 30.11.2024 with her children. The petitioner is her cousin. The victim had gone to the petitioner’s house on 01.12.2024 and returned at 4:00 pm. She appeared to be frightened. The informant made inquiries from the victim but the victim did not reveal anything. The informant again made inquiries from the victim in the night and the victim disclosed that the petitioner had raped her. The informant was shocked and asked the victim again. The victim reiterated her earlier statement. The victim is aged 7 years and her date of birth is 11.08.2018. The police registered the FIR. The victim was medically examined and as per the report of the medical ofÏcer, the possibility of sexual assault could not be ruled out. The final opinion was reserved till the receipt of the report from FSL. The police arrested the petitioner and as per the report of the Medical OfÏcer, there was nothing to suggest that the petitioner was incapable of performing sexual intercourse. The victim disclosed that she had taken the photographs from the mobile of the petitioner. These were sent to FSL and as per the report, photographs and obscene data were found in the petitioner’s mobile phone. The petitioner’s photograph matched with the photographs found on his mobile phone. The victim disclosed that she had taken the photographs from the mobile of the petitioner. These were sent to FSL and as per the report, photographs and obscene data were found in the petitioner’s mobile phone. The petitioner’s photograph matched with the photographs found on his mobile phone. Another report from FSL shows that no blood or semen was found in the articles collected by the police from the spot. The petitioner had committed a heinous crime. The police have filed the charge sheet against the petitioner; hence, the status report. 3. I have heard Mr. Vaibhav Tanwar, learned counsel for the petitioner and Mr. Gautam Sood, learned Deputy Advocate General, for the respondent/State. 4. Mr. Vaibhav Tanwar, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated due to a dispute over the land between the families of the victim and the petitioner. The report of analysis issued by the FSL does not corroborate the victim’s version regarding the rape as no blood or semen was detected in the articles sent to the FSL for analysis. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr Gautam Sood, learned Deputy Advocate General, for the respondent/State submitted that the petitioner had raped a seven years girl who was related to him. The petitioner had breached the confidence reposed by the victim’s mother in him. The medical report does not rule out the possibility of sexual assault upon the victim. The obscene data was found in the mobile phone of the petitioner. These circumstances corroborate the version of the victim. The statements of the witnesses are yet to be recorded and the petitioner can influence the witnesses if released on bail; hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem, (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed as under page783: - “Relevant parameters for granting bail 26. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem, (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed as under page783: - “Relevant parameters for granting bail 26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P., ( 2004) 7 SCC 525 : 2004 SCC (Cri) 1974; Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977; Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368; Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765; Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527; Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425; Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] 8. This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under:- “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under:- “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra, (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi), (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:— “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh, (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 9. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. The status report indicates that the victim reported being raped by the accused. The medical report does not rule out the possibility of sexual assault on the victim. This offers, prima facie, corroboration of the victim’s testimony regarding the rape. The victim’s account is also supported by data extracted from the petitioner's mobile phone, which contained photographs taken by the victim. Additionally, obscene material was found on the petitioner's mobile phone. These circumstances, prima facie, demonstrate the petitioner's involvement in the crime. 11. This offers, prima facie, corroboration of the victim’s testimony regarding the rape. The victim’s account is also supported by data extracted from the petitioner's mobile phone, which contained photographs taken by the victim. Additionally, obscene material was found on the petitioner's mobile phone. These circumstances, prima facie, demonstrate the petitioner's involvement in the crime. 11. It was asserted that a false case was made against the petitioner due to a land dispute between the families of the petitioner and the victim, however, nothing was brought on record to substantiate this fact. The plea taken in the petition that the victim’s grandfather had gifted five bighas of land to the petitioner’s father was also not substantiated by bringing any document on record to establish this fact. It is also not shown that some dispute is pending before any authority regarding this land; hence, the plea taken by the petitioner that a false case was made against him due to the dispute over the land is, prima facie, not acceptable. 12. There is force in the submission of Mr. Gautam Sood, learned Deputy Advocate General that the petitioner was involved in the commission of a heinous offence. He raped his niece and violated the trust reposed by the victim’s mother while sending the victim to his house. Considering the gravity of the offence, the petitioner is not entitled to bail. 13. It was submitted that the statement of the victim is yet to be recorded and the petitioner can influence her in case of his release on bail. Keeping in view the relationship between the victim and the petitioner, this apprehension has some basis, therefore, releasing the petitioner on bail will interfere with the fair trial. 14. It was submitted that the blood and semen were not detected in the articles collected by the police, which falsified the prosecution’s version. This is a matter to be considered during the trial, but prima facie, the victim’s statement in a rape case is entitled to significant weight and cannot be disregarded simply because it lacks independent corroboration. Hence, this submission is rejected. 15. Consequently, the present petition fails and the same is dismissed. 16. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.