Himachal Pradesh High Court
Ankit Sharma @ Anku vs State Of Himachal Pradesh on 18 September, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1023 of 2020
Decided on September 18, 2020
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Ankit Sharma @ Anku ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the petitioner Mr. Sanjeev Kumar Suri,
Advocate.
For the respondent Mr. Sudhir Bhatnagar and Mr.
Arvind Sharma, Additional
Advocates General with Mr.
r Kunal Thakur, Deputy Advocate
General.
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Sandeep Sharma, J. (Oral)
By way of instant petition filed under S.439 CrPC, prayer has been made on behalf of bail petitioner for grant of regular bail in case FIR No. 47, dated 25.11.2019 under Ss.
376-D and 120B IPC, registered at Women Police Station Baddi, District Solan, Himachal Pradesh. Status report prepared on the basis of investigation carried out by investigating agency stands filed, perusal whereof reveals that on 25.11.2019, victim-prosecutrix (name withheld) lodged a complaint with Superintendent of Police, Pinjore (Haryana) on the basis of which FIR No. 0407 dated 19.11.2019 under S.376D IPC came to be registered against the bail petitioner 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 2and other co-accused namely Rakesh and Mandeep at Police Station Pinjore. However subsequently aforesaid FIR came to .
be transferred to Women Police Station Baddi, since alleged crime took place within the jurisdiction of Baddi. After transfer of aforesaid case FIR No. 47, dated 25.11.2019, came to be registered at Baddi, District Solan, Himachal Pradesh, wherein victim-prosecutrix alleged that she is a divorcee having one son aged 7 years. She alleged that on 18.11.2019, she gave a telephonic call to bail petitioner, with whom she had prior acquaintance, for arranging some job for her. Allegedly, the bail petitioner assured the victim-prosecutrix to provide her job and called her to Baddi. However, when she reached Baddi at 2.30 pm, bail petitioner asked her to reach Pinjore. Victim-
prosecutrix alleged that on the askance of Ankit Sharma, she went to Pinjore herself, from where bail petitioner brought her back to Baddi and after having his truck parked near Truck Union, took victim-prosecutrix and her son to his room.
Victim-prosecutrix alleged that the bail petitioner made her and her son consume cold drink, whereafter, she became unconscious. She alleged that two persons namely Mandeep and Rakesh Kumar were also present in the room and they alongwith bail petitioner sexually assaulted her against her wishes. She alleged that all the accused, after having raped ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 3 her, left her and her son alone at some unknown place, whereafter, some unknown persons informed her cousin, .
Praveen, who took her to Kalka. In the aforesaid background FIR came to be lodged against bail petitioner and other co-
accused. Bail petitioner as well as accused Mandeep are behind bars since 26.11.2019 whereas, another co-accused Rakesh Kumar has been enlarged on bail vide judgment dated 10.9.2020 passed in CrMP(M) No. 1302 of 2020.
2. rLearned Deputy Advocate General, while fairly admitting factum with regard to filing of Challan in the competent Court of law, contends that though 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, rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Mr. Thakur, learned Deputy Advocate General further contends that there is overwhelming evidence adduced on record by investigating agency suggestive of the fact that bail petitioner, firstly assured victim-prosecutrix to provide her job and thereafter, taking undue advantage of her condition, sexually assaulted her against her wishes in the room at Baddi. While admitting factum with regard to passing of order dated 10.9.2020, whereby bail came to be granted to ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 4 co-accused Rakesh Kumar, Mr. Thakur, learned Deputy Advocate General contends that no parity can be claimed by .
the bail petitioner for the reason that there was no medical evidence on record suggestive of the fact that co-accused Rakesh Kumar sexually assaulted victim-prosecutrix, as such, this Court enlarged him on bail. However, in the instant case, there is overwhelming evidence substantiated by medical record to demonstrate that the bail petitioner sexually assaulted the victim-prosecutrix as such, prayer for grant of bail deserves outright rejection. Lastly, Mr. Thakur contends that in the event of petitioner being enlarged on bail, he may dissuade the witnesses from deposing against him.
3. Having heard learned counsel for the parties and perused the material available on record, this Court finds substantial force in the submission made on behalf of learned Counsel appearing for the petitioner that there are material contradictions and inconsistencies in the statements made by victim-prosecutrix during investigation. Record reveals that on 18.11.2019, bail petitioner called the victim-prosecutrix to Baddi for providing her job. Having noticed the conduct of the victim-prosecutrix, which is clearly reflected in her statements given to the police as well as to Judicial Magistrate, it can be safely inferred that she, of her own volition, without there ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 5 being external pressure, reached Baddi, from where she was allegedly called to Pinjore by bail petitioner. Victim-
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prosecutrix, of her own, after having received telephonic call from bail petitioner went to Pinjore, who allegedly brought her back to Baddi and sexually assaulted her against her wishes in a room near Baddi Truck Union. Having carefully perused the contents of FIR initially lodged by the victim-prosecutrix at Pinjore, juxtaposing her subsequent statements recorded under S.161 CrPC and 164 CrPC, this Court finds that the victim-prosecutrix frequently changed her statements. Victim-
prosecutrix in her initial statement under S.154 CrPC at Pinjore alleged that the bail petitioner took her and her son to a room near Baddi where two persons, Ramesh and Mandeep were already present but, if her subsequent statement under S.161 CrPC given at Police Station Baddi is perused, it is in total contradiction to her initial version recorded at Police Station Pinjore, because, in her subsequent statement at Baddi, she alleged that at 6.00 pm, bail petitioner took her and her son to a room and himself went out to bring some food.
She stated that after 45 minutes, bail petitioner came back alongwith his two friends, Rakesh and Mandeep. She stated that the bail petitioner gave cold drink (Dew) to her son, who after consuming the same went to sleep, whereas, she also ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 6 after having consumed cold drink, felt giddy. She alleged that bail petitioner and other persons, sexually assaulted her .
against her wishes taking undue advantage of her unconscious state. In her statement under S.161 CrPC, victim-
prosecutrix alleged that the bail petitioner and co-accused Rakesh dropped her and her son at Nanakpur. She in the aforesaid statement further alleged that after the alleged incident, she gave a call on mobile No. 98823-83544 belonging to her brother, Praveen, who thereafter took her to his quarter at Kalka. Aforesaid version of victim-prosecutrix recorded under S.161 CrPC is totally contradictory to her initial version recorded under S.161 CrPC. Victim-prosecutrix, while getting her statement recorded under S.164 CrPC, alleged that she after having reached Baddi, called bail petitioner, who asked her to come to Pinjore. She disclosed to the Judicial Magistrate that at 4.30 pm, she told bail petitioner that she is going to house of her brother, whereafter, bail petitioner took her to Baddi. While she was sitting in truck, bail petitioner went to bring food. Thereafter, at 6.50 pm, he came back to the room but interestingly, in the statement, there is no mention with regard to presence of two accused in the room, when allegedly the victim-prosecutrix reached there. Most importantly, in the aforesaid statement under S.164 CrPC, victim-prosecutrix ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 7 stated that bail petitioner alongwith two accused, after having sexually assaulted her, unclothed her and dropped her on the .
roadside. There is no mention of aforesaid allegation in the initial statement recorded under S.154 CrPC as well as under
S.161 CrPC. In the statement under S.154 CrPC, victim-
prosecutrix claimed that some unknown persons, having found them alone on the road, gave telephonic call to her cousin, but as has been noticed herein above, in the initial statement, she claimed that she herself gave a telephonic call to her brother.
4. In the case at hand, version put forth by victim-
prosecutrix becomes very doubtful on account of specific opinion rendered by Forensic Science Laboratory in its report, wherein it has been categorically opined that no poison, ethyl alcohol, drug could be detected in the contents of parcel P1 i.e. blood sample of the victim-prosecutrix.
5. In the case at hand, precise allegation of the victim-prosecutrix is that firstly bail petitioner made her consume cold drink containing some intoxicant and thereafter sexually assaulted her against her wishes, but such version of the victim-prosecutrix has becomes doubtful in view of the aforesaid report of the FSL. If report submitted by FSL is taken into consideration, it renders the entire story of the ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 8 prosecution doubtful. Otherwise also, other medical evidence adduced on record by the investigating agency does not .
support its case. Medical evidence adduced on record though suggests that DNA of the bail petitioner and other accused Mandeep matched with the samples taken from the victim-
prosecutrix but same did not match with that of Rakesh, against whom victim-prosecutrix also leveled allegations that the bail petitioner and other accused, sexually assaulted her against her wishes. Forensic Science Laboratory, in its report has reported that two male DNA profiles were obtained from Ext.-2 (Bedsheet) and out of these two DNA profiles, one DNA profile could be identified and that DNA profile was consistent with the DNA profile obtained from Ext. 5 (blood on FTA Mandeep Kumar) but interestingly, it has been concluded in the report that, "Two autosomal STR DNA profiles, pertaining to male individuals were obtained from Exhibit-1g (Pajami, Jyoti) of these two DNA profiles; one DNA profile Matched completely with the autosomal STR DNA profile obtained form Exhibit 13 (Blood on FTA, Ankit Sharma), while the DNA profile pertaining to other male individual was consistent with the autosomal STR DNA profile obtained from Exhibit-1b(Anterior vaginal swab, Jyoti)" and "Two male DNA profiles ere obtained form Exhibit-2 (Bedsheet). From these two DNA profiles, one DNA profile could ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 9 be identified and that DNA profile was consistent with the DNA profile obtained from Exhibit-5 (Blood on FTA, Manddep Kumar)"
.
If aforesaid report is taken into consideration, the DNA profile of some unknown third person also matched with autosomal STR DNA obtained from vaginal swab of victim-prosecutrix but neither there is allegation, if any, against said third person nor during investigation, role of third person has emerged, as such, by merely placing reliance upon aforesaid DNA profiles, complicity, if any, of the bail petitioner at this stage, cannot be concluded, rather, same is required to be proved in accordance with law, by leading cogent and convincing evidence.
6. Record reveals that during the pendency of the present petition, learned Counsel appearing for the petitioner informed this Court that the victim-prosecutrix earlier had also levelled similar allegations against some person in Kalka and as such, FIR No. 110/2019 was lodged under S.354 IPC at Police Station Kalka. Vide order dated 10.8.2020, this Court directed State to verify aforesaid factum. Record reveals that the police verified the factum with regard to lodging of FIR with Police Station Kalka. Documents collected on record in this regard by investigating agency reveal that the victim-
prosecutrix is a resident of Kalka as such, story put forth by her that she was called to Baddi/Pinjore by bail petitioner ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 10 from Una also does not appear to be correct. More over, call detail report placed on record by bail petitioner which has not .
been refuted by respondent-State clearly reveals that no phone call was made from the mobile of victim-prosecutrix after the alleged incident rather, victim-prosecutrix after alleged incident gave as much as three calls to bail petitioner that too on next day i.e. 19.11.2019 at 17.12 before lodging Zero FIR at Pinjore, which subsequently came to be transferred to Baddi, and victim-prosecutrix had a talk for 467 seconds with bail petitioner. It appears highly improbable that a person, who was allegedly raped, would thereafter establish contact with the accused, rather in normal circumstances, such person would directly approach the Police against them.
7. Though aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having taken note of aforesaid aspects of the matter, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for more than ten months. Though Challan in the case at hand stands filed but in the wake of Covid-19 pandemic, there is every likelihood of trial being delayed and as such, there is no justification to ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 11 keep the bail petitioner behind the bars for an indefinite period during trial. Hon'ble Apex Court and this Court, in a catena of .
judgments have held that till the time, guilt, if any, of a person is proved, he/she is deemed to be innocent. In the case at hand also, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution. Otherwise also apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions.
8. 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 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:
"2. 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 ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 12 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.
3. 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.
4. 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 first-time offender or has been accused of other offences and if so, the nature of such ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 13 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.
5. 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 Re-Inhuman Conditions in 1382 Prisons."
9. By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:-
::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 14"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."::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 15
10. 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 also, normal rule is of bail and not jail. Apart from above, 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.
11. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an accused ::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 16 has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated .
that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such r privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
12. The Apex Court in Prasanta Kumar Sarkar versus 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;::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 17
(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.
13. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be enlarged subject to furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned Magistrate available at the station, besides the 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 him/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.
(e) He shall surrender passport, if any, held by him.
14. It is clarified that if the petitioner misuses the 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.
::: Downloaded on - 19/09/2020 20:18:07 :::HCHP 1815. 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 petition alone.
The petition stands accordingly disposed of.
Copy Dasti.
(Sandeep Sharma)
Judge
September 18, 2020
(vikrant)
r to
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