Sunder Lal vs State Of Himachal Pradesh

2

Sandeep Sharma, J

Bail petitioner namely Sunder Lal, who is behind the bars since 10th /11th July, 2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, for grant of regular bail in case FIR No. 77/2018, dated 9.7.2018, under Sections 363, 366(A), 377 of IPC and Section 4 of POCSO Act, registered at police Station, Aut, District Mandi, Himachal Pradesh.

Sequel to orders dated 6th/19th, March, 2020, respondent­State has filed status report, perusal whereof reveals that on 9th July, 2018, mother of the victim/prosecutrix (name withheld to protect her identity), lodged a complaint at police Station, Aut, District Mandi, H.P., alleging therein that on 7th July, 2018 person namely, Sunder Lal (bail petitioner), who otherwise is her god­brother, sexually assaulted her minor daughter and as such, appropriate action, in accordance with law, be taken against him. Mother of the victim/prosecutrix alleged that on 7th July, 2018, her minor daughter had gone to play near temple, but since she did not return for quite long, she went towards Anganwadi centre to know her whereabouts. She alleged that her minor daughter was found lying unconscious in Anganwadi centre. She alleged that the whole night, her minor daughter remained unconscious and on the next day she disclosed her that the bail petitioner took her to Anganwadi Centre and after consuming alcohol committed unnatural sex with her. She also alleged that her daughter disclosed her that the bail petitioner bit her on her cheek.

Police after getting victim/prosecutrix medically examined at Zonal Hospital, Mandi also got her statement recorded under section 164 Cr.P.C before the learned Judicial Magistrate. After completion of the necessary codal formalities police registered FIR, as detailed hereinabove, against the bail petitioner under Sections 363, 366­A, 377 of IPC and Section 4 of POCSO Act on 9th July, 2018 and since then bail petitioner is behind the bars.

Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to filing of the challan in the competent Court of law, contends that through nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on his behalf for grant of bail, may be rejected outrightly. While referring to the statement of the victim/prosecutrix recorded by learned trial Court, Mr. Bhatnagar, learned Additional Advocate General submits that charges under Sections 363, 366­A, 377 of IPC and section 4 of POCSO Act stand duly established against the bail petitioner and as such, it may not be in the interest of justice to enlarge him on bail at this stage.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that though alleged incident took place on 7th July, 2018, but FIR was lodged on 9th July, 2018 and there is no explanation available on record qua the delay in lodging the FIR. As per initial version of the complainant given to the police, her minor daughter was found lying unconscious near Anganwadi Centre after the alleged incident, but it is not understood that why the complainant or other family members failed to take the victim/prosecutrix to hospital immediately after the alleged incident, but in the case at hand complainant and other family members chose to wait for two days to lodge the FIR. If the statement of the complainant recorded under section 154 Cr.P.C., is perused juxtaposing the statement of victim/prosecutrix recorded by learned trial court, there appears to be considerable force in the submissions made by learned counsel for the petitioner that there are lot of contradictions and variations with regard to timing and location of the alleged incident. If the statement of the victim/prosecutrix recorded under Section 164 Cr.P.C., is perused juxtaposing her statement recorded before the learned trial Court, there are material contradictions. Complainant claimed before the police that bail petitioner took her to Anganwadi centre for the alleged commission of offence punishable under Section 377 of IPC, but if the statement of the victim/prosecutrix recorded before the trial Court is perused, it suggests something else. As per own version of the victim/prosecutrix bail petitioner had come to her house where he alongwith her mother consumed alcohol. Statement of the victim/prosecutrix recorded by the trial Court further reveals that some altercation took place inter se bail petitioner, complainant and her husband.

Leaving it aside, medical evidence adduced on record nowhere supports the case of the prosecution. Though, case of the prosecution is that the bail petitioner made an attempt to commit unnatural sex upon the victim/prosecutrix, but medical Officer, who medically examined the victim/prosecutrix of the alleged incident, has categorically opined that there is not a signal finding suggestive of sexual intercourses( Genital or anal). Medical Officer has further opined that there is no finding suggestive of forceful attempt to penetrate either female genitalia or anal aperture. Moreover, there is no opinion, if any, with regard to injury, if any, sustained by the victim/prosecutrix on account of bite allegedly made on her cheek by the bail petitioner. No doubt, in the case at hand, age of the victim/prosecutrix was seven years at the time of alleged offence, but as has been taken note hereinabove, there is no evidence, worth the name, available at this juncture suggestive of the fact that on the alleged date of incident, bail petitioner made an attempt to commit unnatural sex upon the victim/prosecutrix and a such, there appears to be no justification to let the bail petitioner incarcerate in jail for indefinite period during the trial, especially when the bail petitioner has already suffered more than one year nine months. There is no material available on record suggestive of the fact that in the event of petitioner's being enlarged on bail , he may flee from justice or make an attempt to pressurize the witness of the prosecution. Apprehension expressed by learned Additional Advocate General with regard to petitioner's fleeing from justice in the event of his being enlarged on bail, can be best met by putting him to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioner.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the investigating agency, but having noticed aforesaid aspect of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period during trial, especially when he has already suffered for more than one year.

It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.

Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr.,decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first­time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re­Inhuman Conditions in 1382 Prisons

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:­

" The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."

Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 2,00,000/­ (Rs. Two lac) with two sureties in the like amount each, to the satisfaction of the learned trial Court/ Magistrate available at the station with following conditions:

a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and

d. He shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone.

The bail petition stands disposed of accordingly.