Sarwan Kumar vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

FIR No. 45/2020 has been registered against the bail petitioner on 18.7.2020, under Sections 376, 452, 323 and 506 of Indian Penal Code, at Police

Station, Ramshehar, District Police, Baddi, H.P. Interim protection was granted to the petitioner vide order dated 31.7.2020.

Heard learned counsel for the parties through video conferencing and gone through the status report and the record appended thereto.

The prosecution case against the bail petitioner is that the FIR was registered on the basis of a complaint lodged by the prosecutrix at Police Station,

Ramshehar on 18.7.2020. The gist of the complaint was:-

3(i) Prosecutrix is a married lady. Her husband is a truck driver.

3(ii) The petitioner used to harbour bad intentions towards the prosecutrix, used to call her and trouble her. In this regard earlier also a complaint was

submitted against the petitioner at Police Station, Ramshehar by the prosecutrix, which culminated in a compromise.

3(iii) During night of 17.7.2020 while her husband was away, the petitioner entered her (prosecutrix) room and tried to sexually harass her. At that

very point of time, her husband returned home. Upon this the petitioner pushed her as well as her husband. Both men entered into a fight whereafter

the prosecutrix raised alarm, resultantly the petitioner fled from the spot leaving behind his certain articles.

3(iv) During further investigation the prosecutrix in her statement recorded on 20.7.2020 under Section 164 Cr.P.C. stated that she was raped by the

petitioner during night of 17.7.2020.

Learned Counsel for the petitioner submitted that allegations of rape levelled by the prosecutrix in her statement recorded under Section 164

Cr.P.C. is an improved version over her initial complaint lodged on 18.7.2020. The prosecutrix and petitioner were very well acquainted with each

other and were in a relationship. The allegation of forcible sexual intercourse levelled by the prosecutrix in her statement under Section 164 Cr.P.C.

are false. Learned Additional Advocate General submitted that pursuant to the interim protection granted to the petitioner, he has joined the

investigation and is co-operating with the Investigating Agency. He further submitted that in case this Court is inclined to grant bail to the petitioner,

same be made subject to the stringent conditions to the effect that the petitioner shall neither temper the prosecution evidence nor shall influence the

prosecution witnesses and he shall also not threaten or intimidate the complainant in any manner whatsoever.

The allegation of rape has not been levelled by the prosecutrix in the FIR. Same finds mention only in her statement under Section 164 Cr.P.C.

recorded three days after lodging of the complaint. Prosecutrix has not stated that she tried to raise alarm while she was allegedly being sexually

exploited on 17.7.2020 or that she tried to resist the petitioner. She though is stated to have raised alarm only while her husband and the bail petitioner

entered into a scuffle which in turn sounded her ‘Jaith’ and ‘Jaithani’. Petitioner pursuant to the interim protection dated 31.7.2020 has

joined the investigation and is co-operating with the Investigating Agency. In the face of the nature of the allegations levelled against the petitioner and

the investigation conducted so far no fruitful purpose will be served by sending the petitioner to judicial custody. The petitioner is resident of village

Malaun-Khas, Post Office & Tehsil Ramshehar, District Solan, H.P., therefore, his presence can be ensured in the trial. In the facts and

circumstances of the case, the petitioner deserves to be enlarged on bail subject to strict conditions that he will not contact/intimidate/browbeat the

complainant in any manner whatsoever. Accordingly, the present petition is allowed and the interim protection dated 31.7.2020 is made absolute

subject to following conditions:

(i) The petitioner shall continue to join the investigation of the case as and when called for by the Investigating Officer in accordance with law and

shall cooperate with the Investigating Agency.

(ii) The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever:

(iii) The petitioner shall not contact the complainant, threaten or browbeat her or to use any pressure tactics in any manner whatsoever.

(iv) The petitioner shall not leave India without prior permission of the Court.

(v) In case of launching of prosecution, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi) The petitioner shall not 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;

(vii) The petitioner shall inform the Station House Officer of the concerned Police Station about their place of residence during bail and trial. Any

change in the same shall also be communicated within two weeks thereafter. Petitioners shall furnish furnish details of their Aadhar Card, Telephone

Number, E-mail, PAN Card, Bank Account Number, if any.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. With the aforesaid observations, the present petition is disposed of, so also the pending miscellaneous applications,

if any.

The parties shall not insist upon for obtaining certified copy of this order and shall download the same from the website of the High Court. However,

the Registry is directed to send coy of this order to learned counsel for the parties through email subject to furnishing email addresses by them, if so

required.

Copy of this judgment duly authenticated by the Secretary be supplied to learned counsel for the parties, if so requested.