Dina Nath vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is an accused in case registered vide FIR No.38 of 2020, dated 20.03.2020, at Police Station, Hatli, District Mandi, H.P. under Sections

363, 366, 376 and 506 IPC. Petitioner is in custody since 26.05.2020.

Petitioner has approached this Court for grant of bail, in above noted case, under Section 439 Cr. P.C., on the grounds that the case has been

falsely foisted against him with the ulterior purposes. He is innocent. There was nothing in the First Information Report to implicate him. The victim

and her mother have named the petitioner as an after thought. Petitioner is in custody since 26.5.2020. Pre-trial incarceration is violative of his rights.

Petitioner has undertaken to abide by all the terms and conditions as may be imposed against him and has further undertaken not to tamper with the

prosecution evidence.

Petitioner is stated to have approached this Court on more than one occasion for the grant of bail but has remained unsuccessful. It has been stated

on behalf of the petitioner that his bail application being Cr.MP(M) No.1748 of 2021 was rejected by a co-ordinate Bench of this Court on 15.09.2021

with liberty reserved to him to file afresh after the statement of victim is recorded. Petitioner has placed on record a copy of statement of victim

recorded on 9.4.2021 and 01.09.2021, respectively.

In response, the status report has been filed. It has been stated that on 20.03.2020 the complainant lodged the above FIR at Police Station, Hatli

alleging inter alia that her minor daughter (victim), on 18.3.2020, had accompanied her son Shyam Lal and brother Ashok Kumar to village Sadhera to

attend some religious ceremony. On their return, Bhavna Devi and Lucky also accompanied them in the vehicle of Ashok Kumar. At Patrighat, victim

alongwith Bhavna and Lucky alighted from the vehicle, where they were stated to have consumed liquor. Bhavna and Lucky returned home but victim

did not. On inquiry, it was disclosed by Lucky that victim had gone with Boby son of Sh. Pitamber Lal on his motorcycle towards Kalkhar. Boby was

stated to be a cousin of the complainant. On further inquiry, it was found that Boby was not at home and had gone alongwith the truck. Boby was

contacted through the owner of the truck and it was found that he was at Pathankot. Owner of the truck, Complainant and her brother left for

Pathankot and at some distance from Pathankot they found that Boby was in truck No. HP-65-2205 with the victim. Complainant, her brother and

victim started back journey in a car and the owner of the truck and Boby were following in the truck. After travelling for about one kilometer, Boby

stopped the truck and fled away. The victim disclosed that Boby had committed sexual assault on her twice. Boby was arrested. During further

investigation, the victim disclosed that it was the petitioner, who had accompanied the victim from Kalkar to Pathankot in his vehicle. It was further

alleged that petitioner had left the victim in company of Boby but before that petitioner had also committed sexual assault on the victim on way in his

vehicle.

Petitioner was accordingly arrested on 26.05.2020. After finding sufficient material against petitioner and co-accused, challan was presented which

is pending adjudication before the learned Additional Sessions Judge (F.T.C.), Mandi.

I have heard learned counsel for the petitioner and learned Additional Advocate General for the State and have gone through the status report and

the police file.

Petitioner, on earlier four occasions had approached this Court for grant of bail in the same case and on all four occasions, his bail petitions have

been dismissed by considering the merits of the case for the purpose of bail.

Another bail petition of the petitioner was rejected by a co-ordinate Bench of this Court on 15.9.2021 being Cr.MP(M) No. 1748 of 2021 by holding

as under:

“ 7. This Court while granting bail to co-accused Vijay Kumar gave the following reasons:-

“8. I have heard learned counsel for the parties. The petitioner has placed on record the copy of 173 Cr.PC report. A perusal of the MLC reveals

that the age of the victim is mentioned as 15 years. However, the Doctor during physical examination did not notice any external injuries. The

statement of the victim recorded under Section 154 Cr.PC is also placed on record. A perusal of the statement of the victim under Section 164 Cr.PC

recorded on 26.5.2020, i.e. after two months of the incident, apparently due to COVID19 lockdown, reveals a different story. It is stated that on

18.3.2020, she had gone to attend a Yajna in the house of her sister. High Court of H.P. She was returning home alongwith one Lucky and another

female friend. On the way back, Lucky offered her liquor which she took. In the meanwhile, she received a phone call from Boby (Vijay Kumar,

petitioner herein) who told her to visit him otherwise he would die. He also told her that he wanted to marry her. Boby told her to visit him in the

vehicle of Sanju. On this, the victim called Sanju and asked him to come. Sanju came there in his vehicle and she proceeded towards Pathankot in the

vehicle of Sanju. On the way to Pathankot, at a place near Padhar, Sanju stopped the vehicle and raped her forcibly. He also threatened her of dire

consequences in case she revealed the incident to anyone. He further threatened her that in case she would tell this incident to anyone, then he would

kill her family members. After that, he dropped the victim with Boby (Vijay Kumar, petitioner herein), who was in his truck and he himself returned

back. Thereafter, Boby in his truck also committed forcible sexual intercourse with her and went to unload and load the truck. On the way, the mother

of the victim alongwith the owner of the truck intercepted them and brought them to the Police Station.

A perusal of the statement of the victim under Section 164 Cr.PC points out that the victim herself went in the vehicle of Dina Nath @ Sanju (A-2)

to meet Boby @ Vijay Kumar (A1), petitioner herein. Even when Sanju had raped the victim in his vehicle, still she never told Sanju to drop her back

to her home, but she proceeded to meet Boby @ Vijay Kumar (A-1), petitioner herein. There are no allegations that in the truck while committing

sexual intercourse, Boby used any pressure, threat or intimidation. In fact, there is no allegation of use of any force by Boby @ Vijay Kumar while

committing sexual intercourse. Needless to say, the victim being under 18 years of age could not have consented. But her conduct in voluntarily

visiting Boby and at the time of sexual intercourse absence of pressure, threat or any intimation, coupled with the fact that the petitioner is just 18

years of age and is in custody for more than 13 months, makes out a case for bail.â€​

The bare reading of above paragraphs reveals that this Court had given bail to co-accused, Vijay Kumar on entirely different reasons and the

present case of the petitioner is not covered with the said reasoning.

Regarding arguments of learned counsel for the petitioner, none of it entitles the petitioner to bail. In fact, the young girl and Vijay Kumar trusted

him that he would safely drop her to Vijay Kumar but in turn, he took advantage of her being alone and tender age and committed rape upon her,

therefore, such a person is not entitled to bail.â€​

It is trite that successive regular bail applications under Section 439 of Cr.P.C. can be maintained only if there are changed circumstances and such

changed circumstances warrant the grant of bail. The challan in the case was filed on 11.6.2020 and supplementary challan was also presented on

23.12.2020 i.e. before the decision in all the above noted bail petitions of the petitioner. The change in circumstance, as pleaded by the petitioner, is

that other similarly situated co-accused has been enlarged on regular bail. The case of petitioner has already been distinguished by a co-ordinate

Bench of this Court while passing order dated 15.09.2021 in Cr.MP(M) No. 1748 of 2021. In view of this, petitioner cannot raise the same issue time

and again.

In State of H.P. vs. Kajad, 2001 7 SCC 673, it has been held by the Hon’ble Supreme Court that successive bail applications are permissible

under the changed circumstances only and filing of such successive bail applications, without change in circumstances, amounts to seeking review of

earlier order on the bail application, which is not permissible under the criminal law.

It has been argued on behalf of the petitioner that vide order dated 15.09.2021 passed by a co-ordinate Bench of this Court in Cr.MP(M) No. 1748

of 2021, petitioner was granted liberty to file bail application afresh after recording of the statement of victim and hence the present petition has been

filed as the statement of the victim stands recorded. Petitioner has placed on record a copy of statement of the victim recorded on 9.4.2021 and

01.09.2021, respectively. The order in Cr.MP(M) No. 1748 of 2021 was passed on 15.09.2021 and, as such, the statement of the victim had already

been recorded before passing of the said order. It appears that the said fact was not brought to the notice of the Court. Even otherwise, the perusal of

the statement of the victim recorded before the learned trial Court, reveals that she has maintained the allegation against the petitioner, therefore, the

petitioner cannot derive any help from the mere fact that the statement of the victim has already been recorded. It has also been argued on behalf of

the petitioner that since the statements of the material witnesses have already been recorded, no fruitful purpose shall be served by keeping the

petitioner in custody. This argument of petitioner also deserves to be rejected for the reason that the petitioner is accused of commission of very

serious offence. There can be no defence of consent in the cases of criminal assault against the victim, who is less than 18 years of age. It is on

account of the reason, that a girl of such age is not having requisite maturity, that the stringent laws have been provided to deal with the menace of

sexual assault on victims of tender age.

Neither the petitioner has been able to justify the filing of successive bail applications repeatedly without change in circumstances nor has he been

able to justify his case on merits.

In view of above discussion, there is no merit in the petition and the same is dismissed.

Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the

matter uninfluenced by any observation made hereinabove.

Petition stands disposed of.