Kapil Kumar vs State Of Himachal Pradesh

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Jyotsna Rewal Dua, J

The petitioner is accused in FIR No.6/2023, dated 11.02.2023, registered under Section 376 of the Indian Penal Code (IPC) at Women Police Station Una, District Una, H.P. He was arrested on 11/13.02.2023 and by means of the present petition moved under Section 439 of the Code of Criminal Procedure (Cr.PC), seeks his enlargement on regular bail.

From the status report and the record produced by the respondent, the prosecution case as it comes out is that:-

2(i). The FIR in question was registered on the basis of a complaint lodged by the prosecutrix on 11.02.2023. She stated therein that she was a married lady having a daughter aged six years and a son aged four years. She lives with her husband and her children in the premises owned by one Sh. Ashok Kumar-real Uncle of the petitioner. The premises were statedly taken by her husband on rent from said Sh. Ashok Kumar.

2(ii). Her allegations in the complaint were that on 10.02.2023 at about 12:00 am, she had gone to bathroom on the roof top of rented premises to answer the call of nature. She had not bolted the door from inside. The petitioner bounced upon her from behind and raped her. He had gagged her mouth to prevent her from seeking help. He indulged in sexual activities with her for good 10-15 minutes. Thereafter, he fled from spot. She immediately informed her husband about the incident and then lodged her complaint.

2(iii). On the basis of above complaint, the FIR in question was registered and investigations were carried out. During investigations, the prosecutrix was asked to undergo medical examination on 11.02.2023, but she refused to undertake the same.

2(iv). According to the prosecution, the petitioner was arrested on 13.02.2023. His medical examination was also got conducted. The victim/prosecutrix agreed for her medical examination on 14.02.2023. The reports came on the basis of her medical examination, which were as under:-

“1. Blood and semen were not detected in exhibit-1a (vaginal slides, victim), exhibit- 1b (vaginal swab, victim), exhibit-1c (pubic and axillary hair, victim), exhibit-1e (nail clippings, victim), exhibit- 2 (underwear, victim), exhibit-4a (pubic hair, Kapil Kumar), exhibit-4b (smegma swab, Kapil Kumar), exhibit-4e (smegma slides, Kapil Kumar), exhibit-5 (underwear, Kapil Kumar), exhibit-7a (shirt, victim), exhibit-7b (salwar, victim) and exhibit-7c (underwear, victim).

Human blood of group ‘O’ was detected in exhibit-1d (blood sample, victim).

Human blood of group ‘B’ was detected in exhibit-4d (blood sample, Kapil Kumar).

Human blood was detected in exhibit-4c (blood sample on FTA card, Kapil Kumar).”

Learned Senior Counsel for the petitioner submitted that the petitioner has been falsely implicated by the prosecutrix. There was a civil dispute between the prosecutrix and petitioner’s real Uncle-owner of the premises, where the victim alongwith her family members had been residing as a tenant. Petitioner’s Uncle wanted the prosecutrix and her family to vacate the premises, which was objected to by the prosecutrix and her family members.

In this regard, an incident was also reported by the prosecutrix, which was entered in the General Diary of Police Station Haroli, District Una on 11.02.2023 at 12:59 pm. The present FIR is nothing, but reflects the vindictive attitude on part of the prosecutrix as a fall out of the attempt of petitioner’s Uncle to get the rented premises vacated from the prosecutrix and her family members. Learned Senior Counsel for the petitioner further submits that the petitioner has by now completed around 45 days in custody. The entire investigation qua the petitioner is complete. Nothing is to be recovered from him. The petitioner has no criminal antecedents. Learned Senior Counsel further submitted that in case of enlargement of the petitioner on bail, he will abide by all the terms and conditions, which may be imposed upon him by this Court.

Learned Additional Advocate General opposed the grant of bail on the ground that the petitioner is accused of committing rape upon the prosecutrix. Considering the gravity of the offence, the petitioner does not deserve to be released on bail. Prayer was accordingly made for dismissal of the petition.

I have heard learned counsel for the parties, gone through the case file and the status report filed by the respondent. I have also considered the record produced by the Investigating Agency.

The prosecutrix is stated to be 35 years old, married for last ten years and mother of two children, aged six and four years, respectively. The record shows that there had been a civil dispute between two factions, i.e. belonging to the prosecutrix and her family members on the one side and the petitioner and his relatives on the other, regarding tenanted premises occupied by the prosecutrix and her family members belonging to real Uncle of the petitioner. I have also considered the statement of the prosecutrix recorded under Section 164 Cr.PC, wherein, she has herself referred to the aforesaid incident of having been asked to vacate the premises belonging to petitioner’s real uncle. The prosecutrix has levelled allegations of having been raped by the petitioner in an unbolted bathroom and that she could not cry for help having been gagged by the petitioner. The prosecutrix had refused to undergo medical examination on 11.02.2023. She eventually agreed for medical examination, which was conducted upon her on 14.02.2023. The report of medical examination has been extracted in para supra. These prima facie observations have been made only for the purpose of adjudicating instant bail petition. These observations are not meant to prejudice the case of either party in trial. The petitioner does not have any criminal history. He has spent about a month and a half in custody. Investigation qua the petitioner is complete. Considering the nature of allegations levelled by the prosecutrix, the mode and manner of commission of alleged offence and the investigations carried out by the respondent, it will not be appropriate to curtail the freedom of the petitioner any further. In the facts and circumstances of the case, the petitioner has made out a case for his enlargement on regular bail. Accordingly, the instant petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.75,000/- (Rupees Seventy Five Thousand only) with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-

(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii). The petitioner will not leave India without prior permission of the Court.

(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer, prosecutrix and her family members or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). In case the petitioner is put to trial, then he shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter.

Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.

The parties are permitted to produce copy of order downloaded from the High Court website before the concerned authorities, who shall not insist for certified copy of the same, however, may verify the order from the High Court website or otherwise.