Sajjan Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Record produced and perused.

Status report stands filed, wherein it is stated that the petitioner has been arrested on 6.12.2020, in case FIR No.287 of 2020, dated 5.12.2020,

registered under Sections 376 of the Indian Penal Code, in Police Station Dhalli, District Shimla, Himachal Pradesh, on the basis of complaint of

prosecutrix, wherein, according to Status Report filed on behalf of respondent-State, she had stated that she was resident of village Chhanavat and

was married in the year 2010 and out of that wedlock she has begotten a son, who is 9 years old, and she had left the house of her husband as he used

to beat her under the influence of intoxicants, and she has been living with her mother since 2018 and her divorce case is pending and she was in

search of work and had worked in B Godrej Company at Chandigarh and thereafter associated herself with Home Care Group formed by Abhijeet

and had worked for one month in Home Care at Mohali, but thereafter she went to village.

It is further stated in the Status Report that from the Home Care Group, petitioner had obtained her mobile number and added her in his group,

namely ‘Helping Hand Pvt. Ltdâ€. On 27.11.2020, she was telephonically contacted by petitioner, through his cell-phone, offering her a job with

salary of `15,000/- per month in Shimla to which she had agreed, whereupon, on 28.11.2020, petitioner had booked a Cab for her from Chandigarh and

on that day she reached village Dhanogi (Mashobra) in the house of two old-aged persons. Petitioner had shown her room in the lower storey. On the

next day, i.e. 29.11.2020, she had completed her entire household work and during night petitioner had come to her room on the pretext of advising her

certain things and had violated her person and thereafter he had violated her 3-4 times, day and night.

On perusal of record, it has also transpired that prosecutrix has further stated that on 4.12.2020, she had made a call on ‘112’ and had also

contacted Cab driver/owner to provide her Cab to leave Mashobra and on 5.12.2020 she had contacted her sister, on mobile, and thereafter she had

approached the police in Police Station Dhalli.

It is submitted by the learned counsel for the petitioner that copulation between the petitioner and the prosecutrix was consensual, as is evident from

Call Detail Report of the phones of the petitioner and the prosecutrix, which indicates that the prosecutrix, after dialing ‘100’ at about 9 a.m.,

had sent lengthy messages to the petitioner between 9.55 am and 9.57 am, at 10.10 am, at 10.19 am and 10.36 am to 10.37 am and it has been

claimed that prosecutrix was black-mailing the petitioner with threat to lodge complaint against him for violation of her person, despite the fact that the

copulation was consensual. He further submits that despite contacting/dialing ‘100’ at 9 am, FIR has been lodged by the prosecutrix at 9.16 pm

and, therefore, it is apparent that FIR has been lodged after due deliberation for denial of the petitioner to succumb to the pressure maintained by the

prosecutrix. He has further submitted that as per allegations leveled in the FIR, it is stated that petitioner had entered in her room on 29.11.2020, on

the pretext of giving her instructions related to her work but had violated her forcibly and thereafter petitioner had violated her 3-4 times day and night

and in her statement recorded under Section 161 of the Code of Criminal Procedure, she had further stated that on 29.11.2020 when petitioner had

violated her she had tried to resist but the petitioner had threatened her to throttle her for ending her life and thereafter he used to come in her room

daily and violated her 3-4 times daily and on 4th December she had explained the entire episode to her sister and on 5th December she had dialed

‘112’ wherefrom, after ascertaining her location, when she called again, she was advised to report the matter at Mashobra or Dhalli, whereupon

she went to Police Station Dhalli.

According to learned counsel for the petitioner, version of prosecutrix of forcible violation of her person is not viable for the reason that prosecutrix

is 28 years old healthy young married lady and, thus, possibility of violating her person, without any physical struggle, is least, particularly violating the

person number of times, as alleged. He has further submitted that prosecutrix is not a rustic lady, rather has experience of pursuing Court proceedings,

as stated by her, as also experience of serving in a city, like Chandigarh, with Home Care Group at Mohali (Punjab).

Learned counsel has further submitted that sending of 8 messages between 9.55.59 am and 9.56.32 am, 9 messages between 9.57.00 am and

9.57.23 am, and 8 messages between 10.36.53 am and 10.37.38 am, indicates that lengthy messages were sent by the prosecutrix to the petitioner for

pressurizing him to succumb to the pressure, as according to him, one message of only 160 characters can be sent at a time and as and when lengthy

message is sent, containing large number of characters, the said message is split by the system in numerous messages within seconds, however, only

one message is delivered to the recipient. According to him, in case it was a case of forcible violation and revolt of prosecutrix against such forcible

act then there was no occasion for prosecutrix to contact the petitioner again and again even after approaching the police on telephone, wherefrom

she had been guided to lodge the complaint at Mashobra or Dhalli Police Station.

In her statement, recorded under Section 164 of the Code of Criminal Procedure, the prosecutrix has stated that on 29.11.2020, petitioner had

pressed her throat and had overpowered her by holding her hands, and thereafter petitioner had again violated her on 4.12.2020, and thereafter when

she asked the petitioner to let her to go to her native place, the petitioner had replied that she had to stay for one month more and thereafter the

petitioner had again violated her person on 4.12.2020 and she was intending to go to her native place after getting salary but petitioner did not pay the

salary and she had told the petitioner that she would report the matter to the police and thereafter she called at ‘112’ and then went to Police

Station Dhalli to lodge complaint.

Learned Additional Advocate General has submitted that the petitioner had been exploiting the prosecutrix and in the DNA report received from the

Forensic Science Laboratory, it has been found that DNA profile obtained from underwear of prosecutrix and tissue paper had matched completely

with DNA of prosecutrix as well as petitioner. Therefore, violation of person of prosecutrix, as alleged by her, stands established.

It is further submitted by learned Additional Advocate General that prosecutrix belongs to State of Punjab and she was alone in a remote village at

a distance of 10 kms from Police Station, having no knowledge about the topography of the area and, thus, omission of not making any complaint since

29.11.2020 to 5.12.2020 is natural and justifiable conduct on the part of the prosecutrix. Further that sending of messages to petitioner is yet to be

established and in case such messages were helpful to the petitioner then the petitioner would have come forward to disclose the text of those

messages and further that sending of messages is not sufficient to construe consent of the prosecutrix for violation of her person and lastly it is

submitted by learned Additional Advocate General that even if earlier copulation was a consented act, even then it cannot be construed that

prosecutrix had consented for every time to repeat such activity, therefore, when prosecutrix was not in agreement with petitioner to indulge in such

activity, petitioner had no right to violate her person.

Learned Additional Advocate General has further submitted that the petitioner is a resident of State of Punjab and it would be difficult to ensure

his presence during trial in case he is enlarged on bail and that for commission of heinous crime he is not entitled for bail.

In response, learned counsel for the petitioner has submitted that had it been forcible violation of person of prosecutrix, the petitioner would not

have thrown the tissue paper in the room itself, which has been allegedly recovered from the room of prosecutrix after a considerable lapse of time

from the alleged time of commission of offence. According to him, everything was consensual, as the petitioner and the prosecutrix were known to

each other since long.

Learned counsel for the petitioner has further submitted that in the event of release on bail, the petitioner undertakes to abide by all terms and

conditions which may be imposed by the Court and he is ready to furnish bail and surety bonds as may be directed, including local surety.

Text of the messages has neither been disclosed by prosecutrix nor by the petitioner. Investigating Agency, through Additional Advocate General,

has also expressed inability to lay hand to the text of the messages, which may have thrown light to assess the veracity of submissions made by

prosecutrix as well as petitioner. Under instructions, it is submitted on behalf of respondent-State that prosecutrix had refused to hand over her mobile

phone to the Investigating Agency and, therefore, extract of data relating to the messages sent by prosecutrix to petitioner could not be retrieved from

her mobile phone and with respect to extraction of data from the mobile phone of petitioner, it is submitted in the Status Report as also evident from

the examination report received from the State Forensic Science Laboratory that mobile phone of petitioner was found encrypted with PIN Lock and

could not decrypted with XRY Version 9.3.0, Oxygen Forensic Detective Version 13.0.1.43 and UFED Version 7.40.0.85 and, hence, it was not

possible to extract the data from the mobile phone of the petitioner. Be that as it may, impact text of messages on the case is to be assessed by the

trial Court on production thereof before it during trial, as merit of the evidence and veracity of allegations and counter-allegations of parties are to be

assessed by the trial Court on the basis of evidence produced before it, in accordance with law, during trial. However, on the basis of material placed

before me, at this stage, petitioner may be enlarged on bail.

Accordingly, the present application is allowed and, at this stage, the petitioner is ordered to be released on bail, in FIR No.287 of 2020, dated

5.12.2020, registered in Police Station Dhalli, District Shimla, Himachal Pradesh, on his furnishing personal bond in the sum of `1,00,000/-with two

sureties, each of the like amount, one of which should be a local surety, as undertaken by the petitioner, 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 presence of the

petitioner/accused at the time of trial, subject to following conditions:

(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/her 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 he 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 the petitioner shall not leave the territory of India without prior permission of the Court.

(viii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or

during trial.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the accused-petitioner as deemed

necessary in the facts and circumstances of the case and in the interest of justice.

In case the petitioner violates any of the conditions 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 hereinabove shall not affect the merits of the case in any manner and are strictly confined for the disposal of the present bail

application.

The petitioner is permitted to produce copy of this order downloaded from the High Court website and the trial Court shall not insist for certified

copy of the order. However, passing of the order may be verified from the High Court website or otherwise.

Record returned.

Application stands disposed of.