Jeewan Kumar Alias Rinku vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short 'Cr.PC'), seeking regular bail in case FIR No. 105 of 2020 dated 15.08.2020, registered under Sections 342, 323, 452 and 376 of Indian Penal Code, in Police Station Majra, District Sirmaur H.P.

2 Status report stands filed. Record was also produced and photocopies of relevant documents were also taken on record.

Prosecution case is that on 15.8.2020, husband of victim had informed the police that a person namely Rinku (petitioner) had attempted to violate person of his wife after entering his house, whereupon, Head Constable along with a Police Constable was deputed to visit the spot (Puruwala) where statement of victim was recorded under Section 154 Cr.PC. It was stated therein that she was living along with her husband and children in the property of Harbhajan Singh, resident of Paonta Sahib at Puruwala near Bata river as she and her husband were earning their livelihood by taking care of land of Harbhajan Singh. On that day, when she was taking rest in her room during mid-day and her husband and children were working in the fields and she was all alone, then a person came on motorcycle to her house and demanded drinking water whereupon she gave him water. In response to inquiry by the said person, about other members of family, she informed him that her husband and children were working in nearby fields. Thereafter the said person, leaving his motorcycle there, went towards the fields on foot and returned at about 2.30 PM and after entering her room, immediately bolted the door from inside and overpowered her on her bed and after beating her violated her by removing her trouser (salwar) after throwing her on bed, and despite her refusal to accede to the attempt of petitioner, he continued to violate her for a long time whereupon she also cried loudly. She stated that after some time, her husband returned home along with children and rescued her by entering from another room and beat that person, but, that person got free from her husband and, leaving his motorcycle and mobile there, had turned towards fields and her husband told her the name of that person as Rinku with further information that he used to tie the iron in the construction work and well known to her husband.

On the basis of statement of victim, FIR was registered. Petitioner was apprehended and arrested on 16.8.2020 at 11.30 AM. Victim was medically examined. No internal or external injury on any part of body of victim was found. As per State FSL report, identical autosomal STR DNA profile pertaining to a male individual was obtained from bed sheet and carry bag of petitioner and this DNA profile matched completely with DNA profile obtained from blood sample of petitioner. As per report, blood and semen were not found on shirt, pajami, pubic hair, cervical smear slides, vaginal smear slides, shirt and salwar of victim and also on bermuda, shirt, pubic hair, smegma of petitioner Jeevan Kumar. It is also reported by State FSL that human semen was detected on bed sheet and carry bag but human blood was not deleted on these exhibits. Human blood was found on pants of Jeevan Kumar, but, semen was not detected on this exhibit.

5 Learned counsel for the petitioner submits that even if the story of prosecution is taken to be true as such, then also the facts of case depict that it was a case of consensual relationship and further that petitioner did not violate the person of victim, and he may have tried to do so because as per State FSL report, though DNA profile has matched with DNA profile of petitioner, but, at the same time no semen has been found on any of the exhibits related to victim. It has also been submitted that even if it is considered that petitioner violated the person of victim, then also, for material on record, it appears to be consensual relationship particularly for the reason that there is no injury on any external or internal part of victim and matter has been reported to police as her husband and children had come back and noticed the petitioner along with victim and further it is not the victim, who has visited the Police Station, but, the husband of victim had visited the Police Station and had informed that petitioner had tried to violate his wife.

Learned Additional Advocate General has submitted that petitioner has committed a heinous and serious crime and therefore, he is not entitled for bail and further that petitioner being a resident of Haryana, it would not be possible to procure his presence during trial and therefore, prayer for rejection of petitioner has been made.

Learned counsel for petitioner submits that in case, the petitioner is enlarged on bail, he is ready to abide by any condition imposed by this Court and is also ready to furnish local surety.

8 Without commenting upon the merits of case but, taking into consideration, the aforesaid facts and circumstances and also taking note of the factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage but subject to furnishing personal bond in the sum of Rs.50,000/-with two sureties sureties each in the like amount, one of them should be, as undertaken by petitioner, a local surety, to the satisfaction of trial Court and also subject to any further condition to be imposed by trial Court for assuring his presence during trial including the following further conditions:-

(i) That the petitioner shall make himself available during the investigation as well as trial on each and every date as and when required;

(iii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iv) That the petitioner shall not obstruct the smooth progress of the investigation as well as trial;

(v) That the petitioner shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

(vi) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected or the commission of which he is suspected;

(vii) In the event of repetition of commission of offence, bail granted in present case shall be liable to be cancelled on taking appropriate steps by prosecution/police;

(viii) That the petitioner shall not leave India without prior permission of Court;

(ix) That petitioner shall not misuse his liberty in any manner.

9 It will be open to the prosecution to apply for imposing any such other or further condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It will also be open to the trial Court/Magistrate to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

10 In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail in accordance with law.

11 Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No. HHC/VIG/Misc.Instructions/93-IV.7139 dated 18.3.2013.

12 Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973.

13 The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, they may verify the order from the High Court website or otherwise.

Petition stands disposed of. Dasti copy on usual terms.