Balwant vs State Of H.P

Anoop Chitkara, J

The petitioner, aged 30 years, incarcerating upon his arrest for raping his minor sister-in-law (Saali), aged around 15 years, has come up before this

Court seeking regular bail.

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the same was dismissed as withdrawn. After that he had filed another application which was registered as Cr.MP(M) No. 1874 of 2020, and vide

order dated 4-2-2021, the same was dismissed.

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.

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.

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. 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 her 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.

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.

Ld. Counsel for the petitioner contends that as per the report of the laboratory, the blood and semen were not detected on the swabs collected from

the victim. Thus, there is no scientific evidence to connect the accused and the absence of semen even belies the allegation of coitus.

On the contrary, Mr. Nand Lal Thakur, Ld. Additional Advocate General contends that the victim explicitly alleged rape and that alone is sufficient.

REASONING:

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.

Merely because the genetic material did not obtain semen would qualify that the victim was not subjected to penetrative sexual assault. A

reference to MLC of the victim reveals that as per history disclosed to the doctor, there was no ejaculation inside the vagina. The Investigator or SHO

or the Supervisory Officers did not make any effort to collect semen and other scientific evidence from the floor of the room. The victim had reported

the incident after two days and the medical examination also took place after around two and half days. Thus, if the vaginal swabs did not reveal

presence of semen, it may not be very unusual and an opinion absolving the accused on this count can be found only during trial, and not at the

bail’s stage.

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.

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.

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.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail.

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.

Petition is dismissed.