Raj Kumar Alias Raju vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, who is under arrest, on being arraigned as an accused in FIR number 157/2019 dated 11.8.2019, registered under Sections 452, 376,

506 of Indian the Penal Code, 1860, in the file of Police Station, Ghumarwin, District Bilaspur, H.P., disclosing non-bailable offences, has come up

before this Court under Section 439 of the Code of Criminal Procedure, seeking regular bail.

Status report stands filed. I have seen the status report(s) as well as the Police report under Section 173(2) CrPC, to the extent it was necessary

for deciding the present petition, and heard learned Counsel for the parties.

FACTS

The gist of the First Information Report and the investigation is that the victim who is 55 years of age and a widow, on 11.8.2019, gave a written

complaint to the Police Station, Ghumarwin, District Bilaspur, stating therein that on the previous night i.e. 10.8.2019 at 8:30 p.m., when she was alone

at home and after preparing food in the kitchen, went to her room, one person namely Raju entered her room and after switching off the light he bolted

the door from inside the room. After that, he torn her shirt and vest and removed her Salwar. He also removed his clothes and committed sexual

intercourse with her. In the meanwhile, he also gagged her mouth with his hands and did not let her cry. After doing sexual intercourse, he carried his

clothes and ran away. Since, she was alone in her home, she informed her daughter about this act, but in the night she did not report the matter to the

Police. Subsequently, on the next day, she reported the matter. The Police got her medical examination conducted and the Doctor opined that the

possibility of sexual intercourse cannot be ruled out and the final opinion was reserved till receipt of report of FSL. Subsequently, the police party also

complied with the procedural requirements under the CrPC and arrested the petitioner.

ANALYSIS AND REASONING:

As per the report of FSL, human semen was detected on Ex.-1e and Ex.-2e. However, human semen was not detected on other exhibits. As per

final opinion of the Doctor, since human semen was detected on Ex.-2e, hence, possibility of sexual intercourse cannot be ruled out. After that, the

prosecution sent the swabs for DNA profiling. Till now, the result of DNA profiling is awaited. In the bail petition, the petitioner submits that he had

worked in the victim’s house as a meson about 6-7 months prior to the incident and that the present case is false.

The learned Additional Advocate General did not bring into notice any injury suffered by the victim. Further more, the victim had four children,

which included one son and three daughters. Although the daughters are married but her son is still unmarried. She specifically stated in her

application that her son stays at home. Learned Additional Advocate did not point out the location of her son at the time of such incident.

Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for

such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional

obligation to safeguard the interests of the victim, the accused, the society, and the State. The material so far collected, to convict the accused with the

alleged occurrence if it actually happens, still is not enough to deny him bail.

Given the above reasoning, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever,

and I am inclined to grant bail on the following grounds, but subject to stringent conditions:

a) The report under Section 173(2) CrPC stands filed.

b) The petitioner/accused is in judicial custody since 11.8.2019.

c) The petitioner is a permanent resident of the address mentioned in the memo of parties, as such presence can always be secured.

d) The petitioner has no criminal history.

Consequently, the present petition is allowed. The petitioner/accused shall be released on bail in the present case, in connection with the FIR

mentioned above, on his furnishing personal bond in the sum of INR 10,000/- (Rupees ten thousand) with two sureties in the like amount, to the

satisfaction of the learned Trial Court/Chief Judicial Magistrate/Addnl. Chief Judicial Magistrate or any Judicial Magistrate of District Bilaspur, HP.

The Court executing the personal and surety bonds shall ascertain the identity of the bail-petitioner, his family members, and of sureties, through

AADHAR Card, Pan Card, Ration Card, etc. The petitioner shall mention phone numbers and other details, on the reverse page of the bonds.

The Counsel for the accused and the attesting official shall explain all conditions of this bail to the petitioner.

This Court is granting the bail, subject to the conditions mentioned herein. The petitioner/accused undertakes to comply with all directions given in

this order, and the furnishing of bail bonds by the petitioner/accused is acceptance of all such conditions:

(i) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such

Court, if such Court directs to do so.

(ii) The petitioner undertakes to attend the trial.

(iii) The petitioner shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within

the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.

(iv) The petitioner shall co-operate in the investigation.

(v) The petitioner shall not hamper the investigation.

(vi) The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses.

(vii) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.

(viii) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person

acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.

(ix) In case the petitioner commits any offence prescribing the sentence of imprisonment of more than seven years, within thirty days of knowledge of

such FIR, the petitioner shall intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a

situation, it shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.

(x) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority

which had given such permission.

(xi) The petitioner shall not enter within a radius of five kilometers of the residence of the victim, measuring from the shortest route, until the

conclusion of trial. However irrespective of these conditions, the accused is permitted to visit his Lawyers, Courts and Hospitals. The petitioner shall

inform the SHO of above-mentioned Police Station about the address where he would be residing. After the conclusion of trial, this condition shall

automatically come to an end. In case of emergency, whenever, the accused is required to visit within a radius of five kilometers of the residence of

the victim, then he shall take permission of the SHO/I.O. or any superior Officer of the concerned Police Station or of Pradhan/Up-Pradhan//Member

of Panchayat, in whose jurisdiction, the residence of the victim, falls. But in no situation, he shall stay at this place for more than a week at a stretch.

This condition is being laid so that no trauma is caused to the victim, at least till the conclusion of trial. Such a condition is neither arbitrary nor

unreasonable and the only purpose is that the victim is unable to come face to face with the accused and also has been imposed with a view that the

accused is unable to influence the victim. In case the petitioner needs modification of this condition, then he may apply to this Court, supported with

written permission from the victim, obtained through Pradhan, Up Pradhan, or Ward Member of the Panchayat, where the victim resides. However, it

is made clear that in case the petitioner tries to contact the victim, then this bail shall be liable to be dismissed.

In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any

condition, then, the petitioner may file a reasoned application for modification of such term(s).

The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any,

registered against the petitioner.

The SHO/Additional SHO of the concerned Police Station or the Investigating Officer to handover a copy of this order to the victim(s) and explain

it to them.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

Petition stands allowed in the terms mentioned above.