Vijay Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 Cr.P.C., seeking regular bail in case FIR No. 20 of 2021, dated 10.3.2021, registered in Women Police Station Baddi, District Solan, H.P. under Sections 354 A (1)(i), 384, 376, and 506 of the Indian Penal Code (for short ‘IPC’).

Status Report stands filed. Record was also made available.

Prosecution case in brief is that on 10.3.2021 victim submitted an application in Women Police Station, Baddi, stating therein her address and age of 21 years with further submission that three years ago one boy Vijay met her at Baddi and they started chatting on mobile with each other. One year ago he took her to a room in hotel and snapped her photographs and shot a video and had also touched her. Thereafter he started blackmailing to extort money from her with threat that otherwise he would be disclosing her photographs and video to her relatives and family members. Whereupon, victim started paying money to the petitioner. Petitioner used to give different account numbers to her for transferring/depositing money therein. One year ago, petitioner also took her to a hotel at Kiratpur. Petitioner started to threaten the victim through messages in mobile numbers of her family members. Earlier, because of fear of defamation, she did not disclose anything to anyone, but when petitioner started sending messages to her family members, she approached Women Police Station by submitting complaint against petitioner.

On the basis of aforesaid complaint, FIR under Sections 354A(1)(i) and 384 of IPC was registered. During investigation statements of victim was recorded under Section 161 Cr.P.C by the Investigating Officer and also under Section 164 Cr.P.C. before Judicial Magistrate First Class, Nalagarh. In these statements victim disclosed that she was also violated under threat and, therefore, Sections 376 and 506 IPC were also added in the FIR.

In her statement recorded under Section 164 Cr.P.C. on 11.3.2021, victim deposed before the Magistrate that about five years ago Vijay Kumar contacted her on mobile and through their talks on mobile they developed friendship and Vijay called her in the middle of Bazar and when they were sitting together, petitioner managed to click their photographs with help of someone else so as to claim that complainant/victim was residing with him. For about one year, everything was in order, but thereafter petitioner Vijay threatened her that he would send these photographs to her brother or for deleting those photographs she would have to come to hotel at Baddi. Victim under compulsion went to the hotel near Bus Stand Baddi, where, in the room, petitioner put off her clothes and touched her entire body forcibly and took photographs and prepared video and thereafter with the help of these photographs he started blackmailing her to extort money and she, many times, paid Rs. 1Rs. 1,000/- or 1500/- to him by transferring/depositing the amounts in different accounts supplied by the petitioner, and due to fear she did not disclose about it to anyone. Further that petitioner took Whatsapp number and OTP of victim and started operating her Whatsapp himself under threat that he would release photographs of victim in the village where she was residing and he also threatened to kill her brother and her family members and under these threats he took her in a hotel at Bharatgarh, which she would identify by visiting there. In the room of the hotel, petitioner put off her clothes and violated her physically despite refusal and he also took photographs and prepared her video and thereafter he started sending photographs to persons in her village. Earlier due to fear she could not disclose the episode to anybody and petitioner used to threat to broadcast these photographs on television and newspapers etc. Petitioner also started sending messages with challenge to victim to stop him from broadcasting, if she could.

In her statement under Section 161 Cr.P.C. recorded on 10.3.2021, victim had deposed about the incident in detail as she had stated in her statement under Section 164 Cr.P.C. and further in that statement she also stated that on direction of Vijay she deposited Rs. 1Rs. 1,000/- in account No. 227810010050418 of Gurdeep Kumar and Rs. Rs. 1,000/- in account No. 1234104000098272 of Manu Tiwari.

In supplementary statement of victim, recorded on 7.4.2021, victim stated that in her earlier statement she did not disclose about her violation by petitioner, as she was under fear and duress that on knowing about it her family members would be beating her. When she was alone before the Magistrate, she disclosed everything in her statement. Further that under threat, petitioner had obtained a SIM Card No. 78141-25028 against identity proof of victim but the said SIM was being used by the petitioner. Further that she had transferred Rs. 1Rs. 1,000/- through Google Pay from the phone of uncle Ranjeet and petitioner had sent a message on the mobile of Ranjeet from Mobile number 6283859327 on 4.3.2021, communicating thereby that petitioner would be sending photographs of victim to the entire village and relatives of the victim and if possible, try to stop him if she could.

Supplementary statement of victim was also recorded on 15.3.2021, wherein also, she had stated that because of hesitation she could not tell the Police on 10.3.2021 about violation of her person by petitioner, but she disclosed it before the Magistrate.

In supplementary statement recorded on 28.4.2021, victim had given details of transactions of Rs. 1,000/- and Rs. 1Rs. 1,000/- from the mobile of her tenant Ranjeet Singh through ‘Google Pay’ to two account numbers. One account number was of Manu Tiwari to which Rs. 1,000/- was transferred by Ranjeet and another account was of Gurdeep Kumar, son of maternal uncle of petitioner, to which Rs. 1Rs. 1,000/- was transferred through Ranjeet Singh and she also disclosed about the message sent by petitioner to Ranjeet Singh extending threat to her. Further that she had been sending money to petitioner out of the money received by her from her family for payment of College fee.

Learned counsel for the petitioner has submitted that in the complaint submitted on 10.3.2021 to the Police, victim was silent about her physical violation by the petitioner and she stated only about touching her body inappropriately and about shooting her video and photographs and in this complaint she had stated that petitioner took her to a hotel and shot photographs and video and thereafter he started blackmailing her. He has submitted that version of victim is contrary to the record collected during investigation, as it has come in the investigation that victim and petitioner went to the hotel on 5.10.2020 and 30.12.2020, whereas transfer of money alleged to be made under threats of petitioner took place on 16.5.2020 and 27.8.2020 and both these dates are prior in time to the alleged visits to the hotels and further that on 5.10.2020 room in the hotel is stated to have been booked by petitioner Vijay Kumar, but on 30.12.2020 room in the hotel was booked by victim herself, as evident from the photocopy of extract of register of concerned hotel, wherein alongwith her name her phone number has also been mentioned as 78141-25028. It has been further stated that there is no transaction of money between victim and petitioner at any point of time. There is no message from the mobile of the petitioner to the victim extending threat of any kind and Ranjeet is not related to the victim in any manner and he is stranger and transfer of money by Ranjeet to Manu Tiwari and Gurdeep Kumar cannot be said the transfer of amount by the victim to the petitioner. It has been submitted on behalf of petitioner that as there was no allegation about violation of person of victim or snapping photographs sitting aside her by the petitioner in the first complaint, therefore, allegation of such violation before the Magistrate in statement recorded under Section 164 Cr.P.C. is not a reliable version, as the said statement was recorded one day later after lodging the complaint and there was time for the petitioner to deliberate in order to implicate the petitioner falsely.

It has also been contended on behalf of petitioner that refusal of victim to undergo medical examination at the time of her Medico Legal Examination is also indicative that she has leveled false allegations against the petitioner.

It has been contended on behalf of petitioner that no photograph was clicked by the petitioner. He had received the photographs on his phone from the phone of the victim and message to Ranjeet Singh is from an unknown number which cannot be linked to the mobile phone of petitioner. Further that report of Forensic Science Laboratory does not disclose that obscene pictures related to the case, which were found to be present in data extracted from the mobile phone of the petitioner, were clicked by the petitioner through his mobile phone and, therefore, it has been submitted that presence of obscene pictures related to the case in the mobile phone are not indicative of the guilt of the petiotner, rather reflecting that these photographs were received in his mobile from another phone and thus he cannot be held liable for commission of offence as alleged.

Learned counsel for the petitioner has further submitted that in the report of Forensic Science Laboratory, no video has been found in the mobile of the petitioner, whereas it is claim of the victim that petitioner had also prepared video in the rooms of hotel, which falsifies the claim of the victim, indicating that petitioner has been falsely implicated.

It has been contended by learned Additional Advocate General that victim in her supplementary statement dated 7.4.2021 has categorically deposed that petitioner had obtained a SIM in the name of victim on the basis of identity proof of the victim and was using that SIM. It has been further contended that petitioner was committing the offence very cleverly by not using his mobile for communicating messages to the victim and was using a SIM obtained in the name of victim and using the same to click photographs and to send those photographs on his mobile from the mobile number which was in the name of petitioner but in possession of petitioner. Further that petitioner also used to send the messages extending threats to the victim through mobile of someone else and by sending it, instead of mobile of victim, but to the mobile of Ranjeet in order to avoid creation of any direct evidence of his involvement.

Learned Additional Advocate General has submitted that Ranjeet was tenant in the house of father of victim and on request of victim he had transferred amount to Gurdeep Kumar and Manu Tiwari and as such petitioner got the mobile number of Ranjeet and thereafter sending messages of threat, though through unknown number, but on behalf of the petitioner, has established the link between petitioner and Gurdeep Kumar as well as Manu Tiwari, to whom amount was transferred through Google Pay from the mobile of Ranjeet and this mobile number of Ranjeet was known to petitioner through Gurdeep Kumar and Manu Tiwari and petitioner used this number to send a threatening to victim from unknown number. It has been submitted that from entire material on record, it is evident that petitioner was not only blackmailing the victim, but also doing everything so cleverly by not involving his mobile in the entire episode and even in the hotel also instead of booking room in his own name, he booked the room in the name of victim and mentioned mobile number 78141-25028, which phone number was in the name of victim but was being used by the petitioner and it indicates that since beginning petitioner was intending to implicate the victim in wrong activities and to blackmail her after shooting her photographs and video and, therefore, petitioner is not entitled for bail.

Learned counsel for the petitioner has submitted that aforesaid hypothesis has been created by learned Additional Advocate General but it is not the case either of prosecution or victim and such hypothetical story cannot be made basis for denying bail.

Learned counsel for the petitioner has further submitted that at the most it is case of breakup of relations between petitioner and victim, and has been found to be false because alleged transaction of money is prior in time than to the visits to Hotels. According to victim herself, they were in relations since last 3 years. Therefore, there is no question of extortion of money by exploiting the relations.

Learned counsel for the petitioner, referring report of Forensic Science Laboratory and the photographs extracted from the mobile phone of the petitioner, has submitted that all the photographs, as also indicated in the FSL report, were clicked with some other phone and were received in the phone of the petitioner as Whatsapp message, and he has further submitted that, on perusal of photographs, it appears that these photographs were snapped with consent, that to, in February 2021, whereas claim of the victim is that she was ravished by the petitioner by blackmailing her in the months of October and December 2020. He has further submitted that it creates doubt about veracity of the allegations leveled by the victim about ravishing her by blackmailing her on the basis of photographs allegedly snapped by the petitioner.

Learned Additional Advocate General submits that all these pleas raised by the petiotner are to be considered and decided by the Trial Court on the basis of evidence produced before it, in accordance with law.

Taking into consideration the entire facts and circumstances, but without commenting on merits thereon and taking into account factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioner may be enlarged on bail.

Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of 1,50,000/- with one surety in the like amount to the satisfaction of trial Court/Special Judge and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:-

(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 the petitioner 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 in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner 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; and

(ix) the petitioner shall not leave India without permission of the Court.

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

In case the petitioner violates any 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.

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 18.03.2013.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail applications.

The parties are permitted to produce copy of order downloaded from the High Court website and trial/concerned Court shall not insist for certified copy of the order, however, if required, passing of order can be verified from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.