Rajesh Kumar vs State Of Himachal Pradesh

Anoop Chitkara, J

The victim (aged 16 years), filed a complaint in the Women Police Station, Nahan, District Sirmour, alleging that last month when she had gone to jungle to graze her goats, then the accused met her in the jungle and committed rape upon her. The Police arrested the petitioner after registration of FIR.

While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to procure status report either through WhatsApp/e-mail and forward the same to this Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on his WhatsApp number.

Mr. Nand Lal Thakur, learned Additional Advocate General has filed the status report through e-mail, printout whereof has been placed on record. He further submits that he has sent a copy of the status report to learned counsel for the petitioner on his WhatsApp number.

I have read the status report(s) and heard counsel for the parties through video conferencing.

The petitioner did not file any power of attorney. To contain the spread of Novel Corona Virus, the Epidemiologists have advised to maintain social distancing in the entire world. Consequently, to avoid unnecessary congregation, this Court exempts the petitioner from filing the power of attorney.

FACTS

The gist of the First Information Report and the status report is that the victim (aged 16 years), filed a complaint in the Women Police Station, Nahan, District Sirmour, alleging that last month she had gone to fetch water from a place which was slightly at a distance, then accused Rajesh Kumar (aged 29 years), whose house was near the water source, met her. On seeing her, he dragged her inside his house and put her on the bed. When the victim tried to run, then he bolted the door and after that took off her shirt and pressed her breast. He also made video of the incident and threatened the victim to keep quite. After 2-3 days of the said incident, when the victim had gone to jungle to graze her goats, then the accused again met her in the jungle and committed rape upon her. The Police took the victim for medical examination and subsequently to the Magistrate for recording her statement under Section 164 Cr.P.C. Subsequently, the Police arrested the petitioner.

PREVIOUS CRIMINAL HISTORY

As per the status report, there is no previous criminal history of the bail petitioner.

SUBMISSIONS:

Mr. Ashok Kumar Tyagi, learned counsel for the bail petitioner submits that the allegations are false. Had there been any rape, then DNA would have supported it.

Subsequent to the FIR, the Police produced the victim before learned Chief Judicial Magistrate, Nahan, District Sirmour for recording her statement under Section 164 Cr.P.C. Once the statement of the victim stands recorded in part in the trial Court, which is seized off the matter, usually the petitioner should have filed bail petition before the trial Court. However, in the given facts that her examination-in-chief is yet not complete and the stage for cross-examination did not reach, consequently if this Court hears this application, it would not have any adverse impact on the outcome of the trial Court.

ANALYSIS AND REASONING:

Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim(s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.

(a) Statement of the victim was recorded on oath, but could not be completed because the Police had not procured the report regarding the alleged video recording from Mobile of the accused. However, in the examination-in-chief, the victim reiterated most of allegations as made in the FIR. She also stated that on the same evening, she was cooking in the kitchen, then accused asked her whether she had cooked the food, on which she shown her hand to him and her brother had noticed this gesture. After this, her brother took her to their sister's home, where she disclosed everything to her sister. She further stated on oath that once when she was bringing water, then on noticing accused she accompanied a boy from her village. The accused deliberately splashed her water container and he also splashed his own water container. After this, he asked the boy accompanying her that they had to go back to fill the water containers. Thereafter, on the way to Bauri, accused again committed rape upon her. Discussing her testimony at this stage may be prejudicial to the prosecution, as such, it is suffice to say that the only important consideration is the fact that the victim at the time of sexual intercourse was below the age of 18 years.

(b) Her medical examination neither points out towards any violence nor did she allege any violence.

(c) Keeping in view the fact that the DNA report did not find presence of any semen on the swabs obtained from the victim and looking into her over all conduct, this Court is of the opinion that further incarceration of the accused during the period of trial is not warranted, especially keeping if view the fact that he is in jail for more than one year and nine months.

(d) The material aspect of the investigation is complete.

(e) The petitioner is in judicial custody since 4.8.2018.

(f) The petitioner is a permanent resident of Village Ungar, Tehsil Sangrah, District Sirmour, H.P., therefore, his presence can always be secured.

(g) Before releasing the petitioner from custody, his AADHAR and other proofs of identity to secure presence during trial.

Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose.

Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents of the bail bonds, and the furnishing of personal bond shall be deemed acceptance of all stipulations, terms and conditions of this bail order:

(a) The petitioner shall furnish personal bond in the sum of Rs.10,000/- and one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Illaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered. The petitioner be released on his personal bonds and further he shall furnish the surety bond of the similar amount, on or before July 31, 2020, failing which this bail shall automatically stand cancelled and the petitioner shall surrender on August 1, 2020, before the Court accepting the bond, from where he is being released. The Court is dispensing with the requirement of furnishing surety bond at this stage to avoid travelling of persons to furnish the sureties, to abide by the lock-down ordered by the Government for the safety of the people, by maintaining social distancing to contain the spread of the Covid-19 disease.

(b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of Section 437-A of the CrPC.

(c) Until the statements of the victim and other non official witnesses, are recorded, the petitioner accused shall not stay within a distance of 5 Kilometers radius from the village of the prosecutrix where house of the prosecutrix situates. The petitioner shall inform the SHO of above mentioned Police Station about the address where he would be residing. After the recording of the statements of the aforesaid witnesses, this condition shall automatically come to an end.

(d) In case of emergency, whenever, the accused is required to visit his home, 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 time of completion of her statement in Court. 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.

(e) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s).

(g The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence.

(h) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court.

(i) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/ WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him.

(j) The petitioner shall attend the trial on each date, unless exempted.

(k) In case of Non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

(k) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence.

(l) The petitioner shall surrender all firearms along with ammunitions, if any, and the arms license to the concerned authority within 30 days from today.

(n) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court.

(o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail.

In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be and the trial Court shall also be competent to modify or delete any condition.

The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular.

The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the aforesaid terms.

The Court attesting the personal bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the personal bonds. The petitioner shall also furnish details of personal bank account(s).

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation.

The present bail order is only for the FIR mentioned above. It shall not 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 shall send a copy of this order, preferably a soft copy, to the complainant.

Therefore, keeping in view the statement of the prosecutrix/victim, under Section 164 Cr.P.C., the petition stands allowed in the terms mentioned above.

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.

The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the purposes of the record.

The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same.