Shivani And Others vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Since both petitions arise out of the same FIR, the same are consolidated and disposed of together in order to avoid repetition and for the sake of convenience.

2 Petitioners have approached this Court, invoking provisions of Section 438 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking bail in case FIR No. 154 of 2021 dated 26.12.2021, registered under Sections 420, 506 and 376 of Indian Penal Code (in short “IPC”) in Police Station Tissa, District Chamba H.P.

3 Petitioner Bhupesh Singh is serving as Constable in Police Department and petitioner Shivani is his wife. Petitioners and complainant belong to Scheduled Caste category.

4 Status reports stand filed. Record was also made available.

Prosecution case, in brief, is that complainant approached the Sub Divisional Officer, Tissa by filing a written complaint dated 22.11.2021 complaining that petitioners had grabbed her land by cheating and sexually exploiting her and were also threatening to kill her. In the complaint, it was stated that husband of complainant expired four years ago in a suspicious circumstance regarding which police conducted investigation and during that process, petitioners came in contact of complainant, who, on the pretext of helping her, came in her close contact. Thereafter, petitioner Bhupesh assured complainant to bear her expenses and to keep her children in his house enabling them to study there and to keep her as a wife and for that, he proposed to develop physical relations with promise to visit her. After developing physical relations, he used to visit her house late night and to leave the house before morning in the dark. After some-time, he expressed his reluctance to continue such meetings as it would be objectionable for public for death of her husband and thus he asked the complainant to transfer her land to him and then he would be able to tell the public that the land belonged to him as after transfer of land, he would construct his house on the same. As per complaint, during this period, both petitioners took her son Sanjeev Kumar to their village and admitted him in a school where he studied for about one year and in the intervening period, petitioner Bhupesh continued to visit and exploit her sexually and pressurizing to transfer the land. Believing petitioners, in the year 2020, complainant transferred the land of her share in favour of petitioner Shivani because Bhupesh had told that he would not be able to purchase the land in his own name being a Government employee because for that, he had to seek permission from higher authorities, which was a cumbersome exercise. It is further case of complainant that when mutation was attested in favour of Shivani, petitioners ousted the son of complainant from their house along with School Leaving Certificate. On inquiry, petitioners started threatening the complainant by saying that they had purchased the land by paying consideration and in case, she would raise voice, she would be killed. According to the complainant, after transfer of land from complainant, the same was further sold by petitioners to another villager.

6 On the basis of aforesaid complaint, FIR was registered and on 26.11.2021 complainant was taken to Civil Hospital, Tissa for medical check-up but she refused to undergo medical check-up. On 28.11.2021, statement of victim was recorded under Section 164 Cr.PC before learned Judicial Magistrate First Class, Tissa and, thereafter, she expressed her desire to undergo medical check-up. Whereupon, on same day, she was subjected to medical check-up in Civil Hospital Tissa.

7 Petitioners, after getting anticipatory bail, joined the investigation and claimed that they have purchased the land from complainant by paying consideration of Rs.4,50,000/-. It is further claimed that Rs.85,000/- was paid to complainant in presence of Budhi Prakash and Rs.40,000/- through Hari Singh, a labourer working in their home, and by paying small installments they paid Rs.3,75,000/- to complainant, but complainant was not executing registered sale deed and, thereafter, on payment of Rs.70,000/- in cash complainant executed the sale deed in March, 2020 in the office of Sub Registrar Tissa showing the consideration of land as Rs.1,50,000/-. Petitioner Bhupesh has admitted the visiting of house of complainant, but refused to have any physical relations with her. According to petitioners, on 18.11.2021, the land was sold by them to one Budhi Prakash son of Damar Bahadur resident of village Bharada for consideration of Rs.10,50,000/- by executing the sale deed and attestation of mutation in his favour and due to that, complainant was annoyed and levelled the false allegations on them.

8 According to status report, petitioners could not produce the evidence of payment of Rs.4,50,000/- to complainant, rather, according to record, one bigha land has been sold by complainant for consideration of Rs.90,000/- on 18.3.2020 in favour of petitioner Shivani.

9 Preserved samples of slides, taken at the time of medical examination of petitioner Bhupesh, were sent for chemical examination as well as DNA profiling, result whereof has been received and as per report, though human semen was detected in exhibit-1a (slacks/pyajmi of victim), exhibit-1b (salwar of victim), exhibit 1e (vaginal swabs of victim), exhibit 1f (vaginal slides of victim), however, on DNA profiling and DNA mixed autosomal STR DNA has been obtained from these exhibits, out of which one pertains to a male individual but the same did not show match with DNA profiling obtained from the blood on FTA card of Bhupesh Singh.

10 Learned counsel for petitioner has submitted that conduct of complainant clearly reflects that she is trying to frame the petitioners in false case by creating evidence with help of someone-else but DNA profiling report falsifies all the allegations levelled against the petitioners and therefore, her statement made in complaint is not trustworthy.

Learned counsel for petitioners has submitted that allegations of complainant that petitioner Bhupesh was visiting her house during night to exploit her sexually has been found to be false as DNA profiling obtained from human semen from the payjami of victim as well as vaginal swab and slide of victim has been found to be of someone-else other than petitioner Bhupesh. He further submits that charge under Section 376 IPC has been found to be false, whereas, veracity of other allegations for commission of offence under Sections 420 and 506 IPC are yet to be substantiated and proved during trial and in these circumstances, petitioners are entitled for bail.

12 Learned Additional Advocate General has submitted that result of DNA profiling in present case is not a conclusive piece of evidence to doubt the veracity of complainant with respect to allegations levelled by her in complaint and, therefore, for commission of crime, as alleged in complaint, petitioners are not entitled for bail.

13 Without commenting upon the merits of rival contentions of parties, but, taking into consideration the entire facts and circumstances of the case placed before Court and also taking note of the factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioners may be enlarged on bail in present case, at this stage.

14 Accordingly, petitioners are ordered to be enlarged on bail, at this stage, subject to furnishing personal bonds in the sum of Rs. 50,000/- each with one surety each in the like amount to the satisfaction of trial Court within a period of two weeks from today and also subject to any further conditions to be imposed by trial Court for assuring their presence during trial including the following further conditions:-

(i) That the petitioners shall make themselves available during the investigation as well as trial on each and every date as and when required;

(ii) That the petitioners 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. They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) That the petitioners shall not obstruct the smooth progress of the investigation as well as trial;

(iv) That the petitioners shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

(v) That the petitioners shall not commit the offence similar to the offence to which they are accused or suspected or the commission of which they are suspected;

(vi) In the event of repetition of commission of offence, bail granted in present case shall be liable to be cancelled on taking appropriate steps by prosecution/police;

(vii) That the petitioners shall not leave India without prior permission of Court;

(viii) That petitioners shall not misuse their liberty in any manner.

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

16 In case the petitioners violate any condition imposed upon them, their 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.

17 Learned 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 18.3.2013.

18 Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of these bail applications filed under Section 438 of Code of Criminal Procedure 1973.

The parties are permitted to produce/use copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify placing of the order from the High Court website or otherwise.

Petition stands allowed and disposed of in aforesaid terms.