Himachal Pradesh High Court
Rohit Dhiman vs State Of Himachal Pradesh on 30 October, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M)'s Nos. 1821 and 1850 of 2019
Decided on October 30, 2019
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1. CrMP(M) No. 1821 of 2019
Rohit Dhiman ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
2. CrMP(M) No. 1850 of 2019
Sikander Singh ...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 Yes.
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For the petitioner(s) Mr. Sanjay Jaswal, Advocate, in
both the petitions.
For the respondent Mr. Sudhir Bhatnagar, Additional
Advocate General with Mr. Kunal
Thakur, Deputy Advocate
General, in both the petitions.
SI Suresh Kumar, Police Station
Fatehpur, District Kangra,
Himachal Pradesh.
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Sandeep Sharma, J. (Oral)
Since both the petitions arise out of same FIR, these were taken up together and are being disposed of vide this common judgment.
2. By way of present petitions filed under S.439 CrPC, prayer has been made on behalf of the petitioners, who 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 2are behind bars since 2.8.2019 for grant of regular bail in case FIR No. 63, dated 11.6.2019, under Ss. 363, 366 and 376D .
IPC, S.4 of Protection of Children from Sexual Offences Act and S.3(2)(V) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station Fatehpur, District Kangra, Himachal Pradesh.
3. Sequel to order dated 22.10.2019, SI Suresh Kumar has come present with the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned.
4. Close scrutiny of the status report/record reveals that on 11.6.2019, complainant, Smt. Urmila Devi lodged a complaint at Police Station Fatehpur, alleging therein that her minor daughter-victim-prosecutrix (name withheld), has gone missing. She alleged that on 9.6.2019, at 12 pm, a message from mobile number 88945-49243 was received. Elder daughter of the complainant read the message and thereafter asked the victim-prosecutrix that whose message it was.
Complainant alleged that thereafter, at 7 pm, daughter of her brother-in-law informed her that the victim-prosecutrix had gone towards Nallah with a bag containing clothes. She ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 3 alleged that on 11.6.2019, bail petitioner Sikander Singh gave a telephonic call at around 8/9 pm and informed that the .
victim-prosecutrix was fine and was in Chandigarh. She further alleged that thereafter her brother, Bittu, spoke to the bail petitioner (Sikander Singh) and requested him to disclose whereabouts of the victim-prosecutrix, but allegedly, the bail petitioner not only threatened him but refused to disclose the whereabouts of the victim-prosecutrix. On the basis of aforesaid complaint, FIR in question came to be lodged under S. 363 IPC at Police Station Fatehpur. On 12.6.2019, victim-
prosecutrix presented herself at Police Station Fatehpur, where police, after getting her statement recorded under S.161 CrPC also got her statement recorded under S.164 CrPC in the court of Judicial Magistrate 1st Class, Jawali. In her statement under S.164 CrPC, victim-prosecutrix alleged that she had given a call to person namely Kaku alias Jitender Kumar, who asked her to marry him, but she refused to do so on account of her age. She stated that Kaku called her at Raja Ka Talab, from where he took her to Jallandher. Allegedly at 12 am, Kaku sexually assaulted her against her wishes at Jallandher.
Thereafter, he dropped her back at Fatehpur Police Station.
On the basis of said statement, police got victim-prosecutrix medically examined and thereafter registered case against ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 4 Kaku alias Jitender Kumar under Ss. 363, 376 IPC and S.4 of Protection of Children from Sexual Offences Act.
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5. On 13.6.2019, police received report from Medical Officer who opined that there was nothing to suggest that the accused was incapable of performing sexual act.
6. Interestingly, after 45 days of alleged incident victim-prosecutrix again got her statement recorded under S.161 CrPC and alleged that on 9.6.2019, bail petitioner Sikander Singh and Rohit Dhiman also sexually assaulted her against her wishes at Chata. Police again got the statement of the Gram Panchayat recorded under S.164 CrPC in the court of JMIC-I, Jawali, where she gave altogether a different version that her sister received message that "please Didi make Madhu to speak", but she told her sister that she does not know who is he, however, her mother slapped her and thereafter she went outside her house crying. Allegedly, the bail petitioner Sikander Singh came to the spot and took victim-prosecutrix in his vehicle against her wishes. Victim-prosecutrix further stated that bail petitioner took her to Mahu Pir Temple, Chata and thereafter sexually assaulted her against her wishes. She alleged that she tried to run away 4-5 times but Sikander told her that she cannot escape as there are 4-5 persons keeping a vigil over her. She further alleged that bail petitioner Sikander ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 5 Singh thereafter dropped her at Raja Ka Talab with Kaku alias Jitnder Kumar and Rohit Dhiman. Bail petitioner Rohit .
Dhiman sexually assaulted her against her wishes near School at Harnota. She alleged that thereafter, Jitender alias Kaku took her to his house. She stated that on the next day i.e. 10.6.2019, she took bath and thereafter, mother of Kaku provided food. At 5 am, Kaku took her to Jallandher and thereafter he sexually assaulted her against her wishes, 2-3 times. r
7. On the basis of aforesaid statement made by victim-prosecutrix, names of present bail petitioners came to be incorporated in the FIR under Ss. 363, 366 and 376D IPC, S. 4 of Protection of Children from Sexual Offences Act and S.3(2)(V) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly stating that Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioners, strenuously argued that keeping in view the gravity of offence alleged to have been committed by bail petitioners, they do not deserve any leniency rather the bail petitioners need to be dealt with severely as such, petition may be rejected outrightly. Learned Additional Advocate General further contended that there is ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 6 ample evidence suggestive of the fact that bail petitioners taking undue advantage of the innocence of the victim-
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prosecutrix not only threatened her but also sexually assaulted her against her wishes and even if it is presumed that the victim-prosecutrix was a consenting party, bail petitioners cannot be ordered to be enlarged on bail, because age of the victim-prosecutrix at the time of alleged incident was 16 years, as such, bail petitions having been filed by bail petitioners deserve dismissal.
8. Having heard learned counsel for the parties and perused the material available on record, especially first statement of victim-prosecutrix recorded under S.164 CrPC, this Court has no hesitation to conclude that at no point of time, victim-prosecutrix came to be abducted or kidnapped by the bail petitioners, rather, she of her own volition and without there being any external pressure, left her home. As per first statement of victim-prosecutrix recorded under S.164 CrPC, person namely Kaku alias Jitender Kumar took her to Jallandher under the pretext of marriage and thereafter, sexually assaulted her against her wishes.
9. Interestingly, after 45 days of alleged incident, victim-prosecutrix coined another story and gave altogether a different version. In the second statement recorded after 45 ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 7 days of alleged incident, victim-prosecutrix named bail petitioners herein and claimed that both the bail petitioners .
sexually assaulted her against her wishes and thereafter she went to the house of person namely Kaku alias Jitender. As per own statement of victim-prosecutrix, she after being sexually assaulted by bail petitioners, remained in the house of Kaku for one day and there she was also provided food by brother of Kaku alias Jitender. As per second statement of victim-prosecutrix recorded under S.164 CrPC, co-accused Kaku alias Jitender, who is behind bars, took her to Jallandher after her being sexually assaulted against her wishes by the bail petitioners, which version itself appears to be highly doubtful and improbable.
10. Though, victim-prosecutrix in her second statement recorded under S.164 CrPC, stated that she raised hue and cry to escape but it is not understood that once she had reached house of Kaku alias Jitender, where his mother was also present, what prevented her from disclosing such incident to mother of Kaku alias Jitender but, interestingly, in the case at hand, victim-prosecutrix after alleged incident of sexual assault again went alongwith Kaku to Jallandher of her own volition.
::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 811. Leaving everything aside, aforesaid version put forth by the victim-prosecutrix is totally contradictory to the .
complaint lodged by her mother, who alleged that daughter of her brother-in-law informed her that her minor daughter has gone towards Nallah with a bag containing clothes. She alleged that after alleged incident, bail petitioner Sikander Singh informed over the phone that her daughter was at Chandigarh and she is safe. Medical evidence adduced on record also does not support the prosecution case, rather, compels this Court to agree with the contention of learned counsel for the bail petitioners that at present there is no cogent evidence available on record suggestive of the fact that bail petitioners sexually assaulted the victim-prosecutrix against her wishes. No doubt, at the time of alleged incident, age of victim-prosecutrix was 16 years, but having noticed her conduct, which duly reflects in her statements given to Police and Judicial Magistrate, this Court is of the view that, she was fully capable of understanding the consequences of her being in the company of the bail petitioners and she of her own choice, left her house.
12. 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 ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 9 agency, but having noticed aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioners .
incarcerate in jail for an indefinite period during trial especially when they have already suffered for around three months now. Guilt, if any, of the bail petitioners is yet to be determined in the totality of the evidence collected on record by the prosecution. Hon'ble Apex Court and this Court have held in a catena of judgments that one is deemed to be innocent till such, his /her guilt is proved in accordance with law. There is no material on record suggestive of the fact that in case bail petitioners are enlarged on bail, they shall flee from justice or dissuade the prosecution witnesses associated by the prosecution from deposing against them, as such, they being first offenders deserve to be enlarged on bail.
Apprehension expressed by learned Additional Advocate General can be best met by putting bail petitioners to stringent conditions.
13. 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 ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 10 innocent until found guilty. The Hon'ble Apex Court has held as under:
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"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 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 ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 11 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 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."
14. 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 ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 12 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:-
"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 ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 13 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."
15. 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.
16. 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 ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 14 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 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 r 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 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."
17. 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:
::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 15(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;
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(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.
18. In view of above, bail petitioners have carved out a case for themselves and as such, present petitions are allowed.
Bail petitioners are ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2,00,000/- (Rs.
Two Lakh) each with one local surety in the like amount, to the satisfaction of the Chief Judicial Magistrate concerned/trial court, besides the following conditions:
(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They 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) They shall not leave the territory of India without the prior permission of the Court.
(e) They shall surrender passport, if any, held by them.::: Downloaded on - 31/10/2019 20:24:24 :::HCHP 16
19. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the .
investigating agency shall be free to move this Court for cancellation of the bail.
20. 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 these petitions alone.
The petitions stand accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge October 30, 2019 (vikrant) ::: Downloaded on - 31/10/2019 20:24:24 :::HCHP