Pulvinder Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, seeking anticipatory bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in case FIR No.52 of 2021, dated 20.12.2021, registered in Women Police Station Hamirpur, District Hamirpur, H.P., under Sections 376, 354A, 506 and 509 of the Indian Penal Code (in short ‘IPC’).

Status reports stand filed and record has also been made available.

Prosecution case is that on 20.12.2021, complainant alongwith her husband, approached Women Police Station Hamirpur and submitted a complaint, stating therein that she was married 10 years ago, and after six months of marriage her brother-in-law (Devar), petitioner herein, had started doing wrong acts with her and pressurizing her to have physical relations with him. On completing her education in 2014, she had to stay at home and thereafter atrocities by her brother-in-law increased. In April 2016, he violated her person resulting into abortion of four months pregnancy and thereafter he continuously forced her to have physical relations. Due to his activities she went to Bhatinda, but he started visiting Bhatinda and touching her in wrong manner and abusing her. At one point of time, in the year 2019 he came with a boy of another Village and threatened to kill her. In March 2020, they shifted to their new house and started living separately, however petitioner made it difficult for her to live there, but complainant committed a mistake by not taking recourse of law for her help. Her parents-in-law had been trying to hush-up the matter on the pretext that reporting of it would bring bad name in the society, because of which she could not take any stringent action. It was stated in complaint that petitioner, with the help of his parents, was continuously harassing her. He used to claim that complainant had illicit relations with large number of persons in the society and he calls her prostitute.

It has further been stated in the complaint that on 21. 09.2020 petitioner alongwith parents broke her door and she reported the matter to the Panchayat and thereafter, invariably, she was being summoned and threatened in the Panchayat and she had also been threatened to be disinherit from the property. On the basis of this complaint, FIR under Sections 376, 354A, 506 and 509 IPC was registered.

During investigation, victim expressed her unwillingness for medical examination. Therefore, her medical examination was not conducted. On 21.12.2021, statement of complainant was recorded before the Magistrate under Section 164 Cr.P.C. and thereafter supplementary statement under Section 161 Cr.P.C., was also recorded.

Finding a prima facie case against the petitioner, he has been arrested on 21.12.2021 and since 24.12.2021 he is in judicial custody.

As per status report, on receiving record from Sai Hospital Dugha, Hamirpur, abortion of pregnancy of the victim in the year 2016 has been verified and record related to her treatment was taken into possession. As per opinion of the Medical Officer, rendered on 18.01.2022 on the basis of record, victim was found having pregnancy of 8+ weeks on 08.06.2016 and thereafter she attended OPD on 08.07.2016 with pain in abdomen and on that day USG showed no foetus at 13+1 week and that patient had aborted at home, however, it was opined that no comment about cause of abortion could be given, including rape.

On 19.01.2022, Medical Officer (Gynae Specialist) of Dr.Radhakrishnan Government Medical College, Hamirpur, has opined that normal sexual intercourse is unlikely to cause abortion at 13+1 week of period of gestation.

A bail application preferred by the petitioner, on 30. 12.2021, was dismissed by learned Additional Sessions Judge, Hamirpur, H.P., vide order dated 09.02.2022 by observing that investigation of the case was at initial stage and serious allegations of rape had been levelled by the complainant against the petitioner.

As per status report, after completing investigation, challan has been presented in the Court of learned Additional Chief Judicial Magistrate, Hamirpur, on 14.02.2022.

Learned Additional Advocate General has submitted that petitioner has committed a heinous crime, and in the facts and circumstances stated in the complaint he does not deserve his enlargement on bail and, therefore, prayer for dismissing his bail has been made.

During hearing on 14.03.2022, learned counsel for the petitioner had contended that present FIR is a counterblast to the complaint filed by father-in-law of the complainant against her on 30.11.2021, wherein Panchayat had directed and advised the parties not to abuse each other, to avoid vulgar language and to live in peace. It was further contended that earlier also, in the month of November 2021, complainant had lodged FIR No.118 of 2021 in Police Station Barsar, wherein during investigation, police had found that the said case was triable by the Panchayat, therefore, trial of the case was transferred to the Gram Panchayat, wherein, petitioner was summoned for 20.12.2021, but he could not appear on that day, and immediately thereafter, complainant lodged present FIR to implicate the petitioner falsely. In view of aforesaid submissions, respondent-State was directed to produce complete record of previous FIR, if any, and also record of Panchayat proceedings, if any, pending in/decided by the Panchayat.

Learned counsel for the petitioner by filing Cr.M.P. No.580 of 2022 has also placed on record copies of status report filed by the police before learned Additional Sessions Judge, complaint dated 01.11.2021 filed by the complainant in the Gram Panchayat and challan filed by the police in case FIR No.118 of 2021 lodged by the complainant on 02.11.2021 in Police Station Barsar.

Respondent-State has also filed fresh status report alongwith copies of final report in previous FIR No.118 of 2021 registered in Police Station Barsar, statement of the complainant in that FIR recorded under Section 154 Cr.P.C., MLC of complainant, statement of complainant dated 08.11.2021 recorded under Section 164 Cr.P.C. before the Magistrate and FIR No.118 of 2021.

It has been submitted on behalf of the petitioner that allegation in present FIR is that complainant was violated by petitioner in July 2016 and thereafter, he had been compelling her to have physical relations with him, but she did not complain anywhere for honour of the family as she was emotionally blackmailed

Further, case of the petitioner is that for arguments sake, but without admitting the same, if it is considered that complainant did not report the matter earlier to avoid bad name of the family, then also, it is evident from material on record that after November 2021 there is no such excuse available that incident was not reported for the sake of honour of the family as on 01.11.2021 complainant had filed a detailed complaint to the Panchayat stating therein that her brother-in-law used to level allegations about her chastity by stating that she was in habit to have copulation with new person every year to satisfy her lust, and he used to relate her name with various persons at different time and when she resisted such allegations, her parents-in-law sided with petitioner with threat to disinherit them and that petitioner and his parents were intending to grab personal house which was constructed by the complainant party. Further that complaint was also lodged with the Panchayat a month ago, but thereafter atrocities of petitioner were increasing day by day and he started to spread rumors against the complainant and tried to restrain path of the house and used to remove the Scooter of complainant party from in front of the house to a distant place. Like this there are so many other allegations against the petitioner and parents-in-law, but complaint is silent about sexual harassment or violation of person of the complainant or committing rape by the petitioner during pregnancy or at any point of time.

It has further been contended that application dated 1. 11.2021 also reveals that another complaint was also filed by the complainant one month prior to the said complaint. Therefore, from October to November 2021 quarrel between two parties i.e. families of brothers was in public domain and, therefore, there was no impediment to complainant to lodge complaint on the pretext of saving honour of the family as claimed in present FIR, as in the complaints filed in October and November 2021 complainant had already levelled so many allegations against the petitioner and her parents-in-law.

It has further been contended on behalf of the petitioner that in the statement recorded under Section 154 Cr.P.C., on 02.11.2021 by the police, on the basis of which FIR No.118 of 2021, was registered in Police Station Barsar on 2. 11.2021, though, complainant had made a bald statement that her brother-in-law Pulvinder (Kulwinder) had been harassing her sexually since long and was making vulgar signs/gestures, however, in her statement recorded under Section 164 Cr.P.C. on 8. 11.2021 before learned Judicial Magistrate First Class, Barsar, complainant omitted to lodge allegations regarding sexual harassment or physical violation and, thereafter, on the basis of material on record, Section 354A IPC was omitted from the case and case was found to be triable by the Panchayat and, therefore, transferred to the Gram Panchayat. Thus, learned counsel for the petitioner has submitted that even in FIR No.118 of 2021 complainant has not even whispered about rape committed by the petitioner with her in the year 2016 and, therefore, it clearly indicates that allegations levelled in present FIR are result of afterthought in order to ensure detention of the petitioner by any means.

Learned counsel for the petitioner has also referred complaint dated 30.11.2021 lodged by father-in-law of the complainant before the Panchayat against the complainant wherein on 30.11.2021 Panchayat had passed order and has submitted that as a counterblast, after lapse of 20 days, on 20. 12.2021, present FIR has been lodged.

Learned counsel for the petitioner has further contended that learned Additional Sessions Judge, Hamirpur, had rejected previous bail application of the petitioner on the ground that investigation was at initial stage, whereas, now challan stands presented in the trial Court on 14.02.2022 and now neither anything is to be recovered from the petitioner nor his custodial interrogation is required and facts and circumstances on record are sufficient to release the petitioner on bail.

Therefore, prayer for enlarging the petitioner on bail has been made.

Giving thoughtful consideration to the submissions made on behalf of the parties and also taking into consideration material placed before me, but without commenting thereon on merits and considering all factors and parameters necessary to be taken into consideration for adjudication of bail application as propounded in various pronouncements of the Supreme Court and this High Court, I am of the opinion that petitioner may be enlarged on bail, at this stage.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of `1,00,000/- with one surety in the like amount, to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) 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 him 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;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

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

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.

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 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.