Kasam Deen vs State Of H.P

Virender Singh, J

Applicant-Kasam Deen has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’), for releasing him on bail, during the pendency of trial, in case FIR No. 155 of 2023, dated 21st May, 2023, registered with Police Station Chamba, District Chamba, H.P., under Sections 376, 342, 366, 504, 506 & 120-B of the Indian Penal Code (hereinafter referred to as ‘IPC’).

According to the applicant, he is innocent and has falsely been arrested, in the present case. It is the specific case of the applicant that the prosecutrix is 19 years of age and is major and out of her own will, she has solemnized marriage with the applicant on 28.03.2023 by executing and exchanging the affidavit duly attested by the Notary Public.

It is the case of the applicant that thereafter, on the ceremony of “Nikkah”, the prosecutrix has accepted Rs. 20,000/- and a gold coin as “Hak Mehar”. It is further case of the applicant that they had lived together as husband and wife.

It is further case of the applicant that the prosecutrix has lodged the case against the applicant under the pressure of her parents. The story, as mentioned in the FIR, is stated to be false and there is no iota of truth in it.

Asserting his young age and the fact that in case, he is not released on bail, it may adversely affect his career, a prayer to release him on bail has been made.

The applicant has earlier tried his luck before the learned Sessions Judge, Chamba District Chamba H.P. by filing a bail application, however, the said application was dismissed by the learned Special Judge vide order dated 28.06.2023.

Apart from this, number of undertakings have also been given on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial. Hence, a prayer has been made to allow the bail application.

When put to notice, the police has filed the status report disclosing therein that on 18.05.2023, the prosecutrix has moved an application, in which, she has alleged that on the morning of 28.03.2023 at about 5 AM, she had gone to fetch water at a water source, Kasamdeen (applicant) along with co-accused Sher Ali, Ismile, Yakub and Hanif, who are residents of her area, forcibly took and kept her in a room of the house of one Alladitta, where, her signatures were obtained forcibly on certain papers to the effect that she has to solemnize marriage with accused Kasamdeen. She was told that she has solemnized Court marriage with accused Kasamdeen. She was kept and confined in the house of said Alladitta by Kasamdeen (applicant) for about ten days, where he had committed forcible sexual intercourse with her. He also threatened her that in case, she discloses the incident to anyone, she would be done to death. During this period, they were provided her with some ration, however, when the ration finished, she made a phone call to her Massi (mother's sister), who took her to her house, from where, she was brought to her house by her parents.

8.1. It has further been alleged in the application that thereafter co-accused of the applicant have moved an application at Police Station Chamba on 15.05.2023 against her parents alleging that she (prosecutrix) is legally wedded wife of Kasamdeen (applicant), who has been confined by her parents, in their house. The police summoned them and recorded her statement and she disclosed that neither she has been married to Kasamdeen (applicant) nor she has been confined by her parents.

8.2. On 17.05.2023, after recording her statement, when, the prosecutrix along with her parents and former Pradhan Gulam Rasul were returning back to their home in a vehicle and had reached at place Rajera, at about 6:30 PM, their vehicle was got stopped by the accused persons and Kasam Deen (applicant) and Ismile forcibly took her out from the vehicle. Kasamdeen (applicant) told that she has solemnized marriage with him. Co-accused of applicant Ismile took her to the side of the road and told her that in case, she did not accompany them, he would kill her and her family members, but, they rescued themselves from the clutches of the accused persons.

8.3. Kasamdeen (applicant) had forcibly taken her and had committed wrong act with her and thereafter, she was confined by the other accused persons. They had forcibly obtained her signatures on some papers, however, due to fear of the accused persons, she has not disclosed about such facts to any person.

8.4. On 17.05.2023, they had again tried to take her forcibly from her house and had attacked her family members.

8.5. On the basis of this application, case FIR under Sections 376, 342, 366, 504, 506 and 120-B IPC was registered against the accused persons. Investigation was conducted by ASI Ashok Kumar, I.O. of PS Sadar Chamba.

8.6. During investigation, on 22.05.2023, victim along with her father and Massi visited the Police Station. Statement of the victim, under Section 161 Cr.PC, was recorded and she was got medically examined at Chamba Hospital. Her statement was also got recorded under Section 164 Cr.PC in the Court. Kasamdeen (applicant) was associated and interrogated and on finding evidence against him, he was arrested by the police and was got medically examined. The articles preserved by the Medical Officers have been sent to RFSL, Dharamshala for chemical examination and the report is awaited.

Co-accused of the applicant have been released on bail by the Court on 14.06.2023. It is alleged that the applicant has committed a heinous crime with the prosecutrix.

Apart from this, it is the further case of the police that the prosecutrix has specifically disclosed to the police that she was dragged by Ismail and threatened that in case, she refused to accompany him, he will finish her, as well as, her family. She has got lodged that the applicant had ravished her without her consent and also obtained her signatures over number of papers. Other accused, namely, Sher Ali, Ismail, Yakub and Hanif, were not found at their residence and all the four have moved the applications under Section 438 Cr.P.C., in which, interim orders were passed in their favour by the learned Sessions Judge, Chamba. The documents pertaining to the date of birth of the prosecutrix, were also taken into possession.

It has also been prayed in the status report that in case, the applicant is released on bail, he may coerce the witnesses and allure them not to depose against him.

On the basis of above facts, Ms. Leena Guleria, learned Deputy Advocate General has prayed that the application may kindly be dismissed.

Heard.

The role allegedly played by the applicant in the commission of the offence will be proved during the course of trial. No other criminal history of the applicant has been mentioned or argued by learned Deputy Advocate General during the course of arguments. The presumption of innocence is still available to the applicant.

The applicant is permanent resident of the State of H.P. and except assertions, there is nothing on the file to justify that the applicant will not be available for the trial.

So far as the other apprehensions, which have been expressed in the status report and argued by learned Deputy Advocate General during the course of arguments, are concerned, for those apprehensions, reasonable conditions can be imposed.

The applicant is in judicial custody and this fact clearly demonstrates that his custodial interrogation is no longer required by the police. Moreover, the judicial custody of the applicant would also not serve any purpose, as the pre-trial punishment is prohibited under the law.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

The applicant is ordered to be released on bail in case FIR No. 155 of 2023, dated 21st May, 2023, registered with Police Station Chamba, District Chamba, H.P., under Sections 376, 342, 366, 504, 506 & 120-B IPC, on his furnishing personal bail bond, in the sum of ₹50,000/-, with one surety of the like amount, to the satisfaction of learned Special Judge, Chamba. This order, however, shall be subject to the following conditions:

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Chamba through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Chamba is directed to inform this fact to the Secretary, DLSA, Chamba. The Superintendent of Jail, Chamba is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.