Akshay vs State Of Himachal Pradesh

Anoop Chitkara, J

For taking advantage of the ignorance of a foreigner lady about the difference between a taxi and a private vehicle, who boarded the vehicle of the

accused thinking that it is a taxi and would drop her at bus-stand and they instead of dropping, committed rape upon her and now one of the accused-

petitioner, incarcerating upon his arrest has come up before this Court under Section 439 CrPC, seeking regular bail.

Earlier, the petitioner had filed bail petitions under Section 439 CrPC before the concerned Sessions Court on number of occasions, but the same

were dismissed by the learned Sessions/Additional Sessions Judge concerned. Thereafter, the petitioner also filed petitions before this Court, which

were registered as Cr.MP(M) No.150 of 2019, Cr.MP(M) No.1311 of 2019 and Cr.MP(M) No.1041 of 2020, but the same were subsequently

withdrawn by the learned counsel.

The bail petition is silent about criminal history, however, Mr. V.S. Chauhan, learned Senior Advocate assited by Mr. Ajay Singh Kashyap, learend

counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years

and more, or when on conviction, the sentence imposed was more than three years.

Based upon the statement of a female, who is citizen of Israel, alleging rape by the persons whose car she had sat believing it to be a taxi, the police

registered the FIR, mentioned above. Thereafter, the police arrested the accused and lodged the prosecution. The Sessions Court framed charges and

put them to trial. Now, statement of the prosecutrix stands recorded.

Ld. Counsel for the petitioner contends that the statement of the victim stands recorded and as such no purpose would be served by keeping the

accused-petitioner in jail. He further contents that further incarceration before the proof of guilt would cause grave injustice to the petitioner and his

family.

On the contrary, Ms. Divya Sood, learned Deputy Advocate General contends that the offence is heinous, accused is a risk to law-abiding people,

and bail is likely to send a wrong message to the society.

REASONING:

The statement of the victim stands recorded as PW-6. She is a citizen of Israel and had come to India to travel various places, including Kullu,

Manali as well as Kaja. On the dreadful day, on 24.7.2016, in early morning she left the hotel room to go to the bus-stand to find a commutation to

Kaja. After reaching the vehicular road, she being unaware of the local taxi system, kept on waiting for a taxi. In the meanwhile, one car came and

she signalled it to stop thinking it that it was a taxi. There were other people also in the said car. Thinking them to be the passengers, she asked the

driver to drop her to the bus-stand, on which he stopped the car and she sat in the vehicle. Tne accused talked in the local dielect. After sometime, the

driver drove the car fast. The victim asked them to let her alight, however, they refused. After taking the car to a secluded place, they stopped it on

the roadside and started fondling her. To pacify them, she told one of such person that he appears to be a good person, upon which he replied that he

is not a good person, but a devil. Subsequently, they lowered her pants and it was clear to her that they would rape her. Finding herself to be in a

highly vulnerable position and realising that there is no escape from coitus, she told them to use condom to save her from any sexually transmitted

disease or possibility of pregnancy. However, few of them did not even use it while commiting rape upon her. In the Court, she identified the accused,

including the present bail petitioner.

During her cross-examiantion conducted on behalf of the accused, learned counsel gave a suggestion to the victim that she was a consenting party

and that is why she asked to use condom. In response to this suggestion, the victim explained that she was not a consenting party and she had asked

the accused to use condom because she was afraid of pregnancy and transmission of sexual disease. Thus, the victim denied of having consented to

coitus. Even otherwise, it is impossible that a young girl who is a foreign citizen would indulge in coitus with as many as 5-6 persons. On the other

hand, it is not the case of the accused that she did it for any other consideration. The statement of the victim also suggests that the accused were

unknown to her. Therefore, there is no question of her consenting with the strangers. Resultantly, the petitioner is not entitled to bail.

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.

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.

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.

The petition is dismissed.