Himachal Pradesh High Court
Bhagat Ram Son Of Sh. Sant Ram vs State Of Himachal Pradesh on 13 August, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
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REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
.
ON THE 13th DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) NO.979 OF 2021
Between:-
YOG RAJ SON OF SH. NAROTAM RAM,
RESIDENT OF VILLAGE PANYALI, POST
OFFICE BARSWAN, TEHSIL BALH,
DISTRICT MANDI, H.P. AGED ABOUT
37 YEARS, THROUGH HIS UNCLE
BHAGAT RAM SON OF SH. SANT RAM,
RESIDENT OF VILLAGE BURAHALI,
POST OFFICE DASEHRA, TEHSIL BALH,
DISTRICT MANDI, H.P.
.....PETITIONER
(BY SH.DEVENDER K. SHARMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
.....RESPONDENT
(BY MR.DINESH THAKUR, ADDITIONAL ADVOCATE GENERAL)
This petition coming on for orders this day, the Court
passed the following:
JUDGMENT
Present petition has been filed invoking provisions of Section 439 Code of Criminal Procedure (in short 'Cr.P.C.') seeking enlargement of the petitioner on bail in case FIR No.16 of 2021, dated 13.02.2021, registered in Police Station Sarkaghat ::: Downloaded on - 31/01/2022 22:52:43 :::CIS 2 District Mandi, H.P., under Sections 420, 406, 376, 506 read with Section 34 and Section 120B read with Section 201 of the Indian Penal Code (in short 'IPC').
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2. Status report stands filed, wherein it is stated that victim had approached the police on 13.02.2021 with a complaint, alleging therein that co-accused Lata Devi was known to her and she influenced her with assurance that she would be arranging a girl for marriage of her brother Tej Singh and one day, she had informed that engagement of her brother had been finalized with a girl namely Kirna and in lieu thereof Lata Devi had received a sum of `2,50,000/- from her which was paid by her after collecting it from her brother, sister and mother, and this payment was made by her by withdrawing money from her bank accounts maintained in Cooperative Bank, Bhadrawad and State Bank of India, Sarkaghat. It is further alleged in the complaint that co-accused Lata Devi, during this period, had also extorted money by forcing her to sell golden ornaments like, Teek, Ear rings, Mangalsutra, Finger rings, Nath etc. According to complaint, petitioner Yog Raj, a private bus driver in a bus plying between Sundernagar and Sarkaghat, and God brother of co-accused Lata Devi, had retained money with him by saying that victim would be sent to foreign and when both accused demanded more money, then victim had sold old ornaments of her mother to Verma, Chandrani and Jyoti Abhushan Bhandar and some of those ornaments were retained by the petitioner with him. Further that in the month of March 2020 because of ::: Downloaded on - 31/01/2022 22:52:43 :::CIS 3 Lockdown victim could not remain in direct contact with accused persons but remained in touch through mobile phone calls only.
However, lateron accused Lata Devi refused to arrange marriage .
of brother of victim and when victim demanded her money and ornaments, then they started threatening her and Lata Devi had advised victim to meet driver of Peeyush bus i.e. petitioner by assuring that he would be doing something.
3. It is stated in the complaint that on 04.02.2021 petitioner had taken her forcibly in the bus from Rakhota to Sundernagar and at Sundernagar he had violated her person in some Hotel throughout the night and thereafter had threatened her to kill on disclosure of the incident to anyone. According to complaint, victim was in a shock for loss of money and ornaments and was not able to take a decision and on 11.02.2021, petitioner had again taken her to Sundernagar in the bus and had again committed rape with her in a Hotel and had threatened to kill her by throwing in the lake by saying that apart from loss of ornaments and money she would also be losing her life. On 12.02.2021 complainant had disclosed entire episode to her married sister Kanta Devi and thereafter approached the police alongwith her sister on 13.02.2021. On the basis of this complaint, FIR was registered and investigation was started.
4. During investigation, statement of victim was recorded and videographed and on 15.02.2021 her statement was also recorded under Section 164 Cr.P.C., wherein victim had reiterated extortion of money and violation of her person by the ::: Downloaded on - 31/01/2022 22:52:43 :::CIS 4 petitioner on 04.02.2021 and 11.02.2021 in Sundernagar in different hotels. Whereupon, petitioner was apprehended and brought to Police Station Sarkaghat and during interrogation .
victim had identified the petitioner as accused and had stated that petitioner in conspiracy with accused Lata Devi had sold the ornaments, but had denied violation of her person by the petitioner. But on 16.02.2021 victim had again come to the Police Station alongwith her sister and had reiterated violation of her person by the petitioner on 04.02.2021 and 11.02.2021 with further assertion that she would identify the Hotels. Thereafter, Investigating Officer visited Sundernagar alongwith victim and victim identified the Hotel New Ashiana, situated adjacent to Bus Stand as a Hotel where she was violated by the petitioner in room No.101 and she had also identified the bed sheet as the same bed sheet which was there on the day of incident. On checking and verification of visitors' register, it was found that there was no entry on the alleged date of any visitor staying in room No.101 and on inquiring about CCTV footage, owner of the Hotel had disclosed that CCTV camera was not in order since 04.02.2021.
5. It is further stated in the status report that another Hotel identified by the victim was Hotel Surya and victim had claimed that she was violated by the petitioner in room No.110 of the said Hotel. On verification of entries in visitors' register, it was found that there was no entry of guest/visitor against room No.110 for the alleged date of incident nor there was any footage ::: Downloaded on - 31/01/2022 22:52:43 :::CIS 5 in the CCTV camera. Hotel Manager had disclosed that on 11.02.2021 CCTV camera of the Hotel was not in order.
6. It is stated in the status report that during .
interrogation petitioner had admitted intimacy with victim with further assertion that she had been making telephonic calls to him since long and was interested to marry him, but petitioner had expressed his inability to marry her being already married.
He has also admitted that on 04.02.2021 and 11.02.2021 victim had travelled in his bus up to Sundernagar, but he had not stayed with her in the Hotel, but had gone to home in his native Village.
7. Petitioner was arrested on 16.02.2021 and since then, after remaining in police custody, he is in judicial custody.
8. Co-accused Lata Devi was arrested on 20.02.2021 and she remained in police custody for two days and during search of her house neither money nor ornaments were recovered. She was enlarged on bail by learned Sessions Judge, Mandi.
9. As per chemical analysis report received from Regional Forensic Science Laboratory (RFSL), semen was found on the bed sheets taken in possession by the police after identification thereof by the victim from two Hotels and these bed sheets were sent for DNA Profiling to State Forensic Science Laboratory (SFSL) Junga. As per report received from the SFSL, Junga, DNA Profile pertaining to male individual obtained from the bed sheets did not match with DNA Profile obtained from the ::: Downloaded on - 31/01/2022 22:52:43 :::CIS 6 blood sample of petitioner Yog Raj. On the basis of reports, Medical Officer Sarkaghat has opined that possibility of forceful intercourse cannot be ruled out.
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10. As per status report, challan has been presented in the Court of learned Additional Chief Judicial Magistrate, Sarkaghat on 08.05.2021 and supplementary challan after receipt of SFSL report is being prepared and likely to be presented in the Court.
11. Learned Additional Advocate General has submitted that petitioner has not only cheated victim to extort money and ornaments from her, but has also committed heinous crime by violating her person forcibly and, therefore, is not entitled for bail. Whereas, learned counsel for the petitioner has submitted that victim, on 13.02.2021 in her complaint, had alleged violation of her person by petitioner, but had denied the same during investigation on 15.02.2021, however, had reiterated the said allegation on 16.02.2021 when she visited the Police Station alongwith her sister and further that from the material on record, including DNA Profiling report, plea of petitioner is substantiated that he had not stayed in the Hotels on 04.02.2021 and 11.02.2021 as alleged by the victim. Learned Additional Advocate General has submitted that DNA Profiling is of no relevance in present case as bed sheets were taken in possession not immediately after the incident, but few days thereafter and there is always possibility of someone else staying in those rooms after the commission of offence by the petitioner.
::: Downloaded on - 31/01/2022 22:52:43 :::CIS 712. Without commenting on merits of the evidence collected by the Investigating Agency and without evaluating and assessing rival contentions of parties and material placed before .
me, but considering all factors and principles relevant to be considered at the time of deciding bail application and also taking into consideration facts and circumstances of the case, I am of the considered opinion that, at this stage, petitioner is entitled for bail.
13. Accordingly, petition is allowed and petitioner is ordered to be released on bail in case FIR No.16 of 2021, dated 13.02.2021, registered in Police Station Sarkaghat, District Mandi, H.P., on his furnishing personal bond in the sum of `1,00,000/- with one surety in the like amount, to the satisfaction of the trial Court, within two weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial and also subject to following conditions:-
(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 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;
::: Downloaded on - 31/01/2022 22:52:43 :::CIS 8(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 not leave the territory of India without prior permission; and
(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.
12. 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 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.
13. In case the petitioner violates any condition 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.
::: Downloaded on - 31/01/2022 22:52:43 :::CIS 914. 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.
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15. 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 application.
16. Petition is disposed of in aforesaid terms.
17. Copy dasti.
18. Petitioner is permitted to produce a copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), Judge.
August 13, 2021 (Purohit) ::: Downloaded on - 31/01/2022 22:52:43 :::CIS