Bhagat Ram vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest, for allegedly committing rape upon a deaf and dumb girl, has come up before this Court under Section

439 CrPC, seeking bail.

Earlier, the petitioner had filed several petitions under Section 439 CrPC before the concerned Sessions Court, but the same were dismissed. After

that, the petitioner filed bail petition before this Court, which was registered as Cr.MP(M) No.1195 of 2020, which was subsequently withdrawn by

learned counsel.

The bail petition is silent about criminal history, however, Mr. Manoj Pathak, learned 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.

Briefly, the allegations against the petitioner are that on 10.2.2018, the police officials received an information about rape of a deaf and dumb girl.

On receiving such information, the police officials reached her village. On further inquiry, they were able to trace the brother of the victim and

recorded his statement under Section 154 Cr.PC, which led to the registration of the FIR, mentioned above.

The brother of the victim informed the police that they are three brothers and one sister, who is deaf and dumb. Yesterday, there was a wedding in

their village. He alongwith his father had gone to attend such wedding. His sister was alone at home. At 1:00 O’ clock in the night, when he

returned home, he noticed that the door of the home was opened. He heard some sound of coughing from inside the room where his deaf and dumb

sister sleeps. After that, he entered the room and when he switched on the light, he noticed that Bhagat Ram was lying upon his sister and was doing

sexual intercourse with his sister. The moment Bhagat Ram noticed him, he came out and then they had a scuffle, after which, he caught hold of the

accused and confined him in a room. Thereafter, he called the villagers, but in the meantime, Bhagat Ram fled away after opening the window. After

registration of the FIR, the police took the victim for her medical examination in Civil Hospital, Nerwa. The Doctor preserved her scientific evidence

for DNA profiling. After that, the police arrested the accused and also obtained his genetic material for DNA profiling. Subsequently, the Investigator

sent both genetic materials of victim and accused to Forensic Science Laboratory, Junga for scientific analysis.

The Investigator also produced the victim before JMIC, Chopal for recording her statement under Section 164 Cr.PC and subsequently the police

also got her psychiatric test at IGMC, Shimla. The Forensic Science Laboratory could not deduct any semen on the clothes and pubic hairs of the

victim, however, blood was deducted on the vaginal slides of the victim, which was insufficient for further examination. Thus, in the entirety, the

Forensic Science Laboratory did not deduct any semen from the evidence and the blood recovered was inconclusive for any findings.

Finally, the Doctor opined that there was nothing suggestive for recent sexual assault. Subsequently, the police initiated prosecution and filed report

under Section 173(2) Cr.PC and the trial is going on.

Mr. Manoj Pathak, learned counsel for the petitioner contents that further incarceration before the proof of guilt would cause grave injustice to the

petitioner and his family. Learned counsel has read medical evidence from his file. Learned Deputy Advocate General, submits that they have filed

status report. Although, report of the Doctor did not corroborate the version of the victim, still charges have been framed against the accused-

petitioner and the most important evidence would be the statement of the victim recorded before JMIC under Section 164 Cr.PC as well as

psychiatric test report, which has not been placed before this Court by the petitioner.

On the contrary, learned Deputy Advocate General contends that the accused is likely to repeat the offence. He further 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:

In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that

in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the

prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was

convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused.

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of

a playing field are marshy, and graver the criminal history, slushier the puddles.

Although, the status report had reproduced the final oionion of the Doctor, but Mr. Manoj Pathak, learned counsel for the petitoner did not file the

copies of 173(2) report, MLC and statement of the victim under Sectiion 164 Cr.PC for perusal of the Court. Withouth carefuly scrutiniging and

reading such documents, how bail can be given in such a heinious crime where charges were framed by the Sessions Court.

Learned Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies

of which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed

with the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document in the Counsel's brief and

not on Court's file.

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 with liberty to file a new bail application.

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.