Himachal Pradesh High Court
Jiwan Lal @ Charlie vs State Of Himachal Pradesh on 6 August, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) Nos.903 and 904 of 2018
Decided on: 6.8.2018
.
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1. Cr.MP(M) No. 903 of 2018
Jiwan Lal @ Charlie ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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2. Cr.MP(M) No. 904 of 2018
Dabe Ram ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner(s)
r : Mr. N.S. Chandel, Advocate.
For the Respondent : Mr. S.C. Sharma, Additional Advocate
General and Mr. Amit K. Dhumal,
Deputy Advocate General.
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Sandeep Sharma, Judge (oral):
By way of above captioned bail petitions filed under Section 439 of Cr.PC, prayer has been made on behalf of the bail petitioners for grant of regular bail in connection with FIR No. 48/17 dated 2.6.2017, under Sections 342, 376, 34 of IPC and Section 3 (1) W(1) of SC/ST Act, registered at PS Aut, District Mandi, HP.
2. Sequel to order dated 23.7.2018, passed by this Court, ASI Sham Lal, PS Aut, District Mandi, HP, has come present in Court alongwith record of the case. Record perused and returned. Mr. S.C. Sharma, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 2learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the .
investigating agency.
3. Before adverting to the factual matrix of the case, it may be stated that prior to filing of the instant petitions, above named petitioners had also filed similar bail petitions bearing Cr.MP Nos. 307 and 308 of 2018, which came to be dismissed as withdrawn vide order dated 16.5.2018.
4. Close scrutiny of the record/status report suggests that on 2.6.2017, complainant namely Dile Ram, who happened to be uncle of the victim/prosecutrix, reported to the police that bail petitioners sexually assaulted the prosecutrix, who is partially blind, against her wishes.
Complainant further disclosed to the police that person namely Kirna, who had allegedly taken the prosecutrix to her residence after the alleged incident subsequently disclosed to his wife that bail petitioners sexually assaulted the prosecutrix against her wishes in a house adjacent to the house of the complainant. On the basis of aforesaid report, lodged by the complainant as well as statement given by the victim-prosecutrix, aforesaid FIR came to be lodged against the present petitioners, who are behind bars since 3.6.2017.
5. Mr. N.S. Chandel, learned counsel representing the bail petitioners, while making this Court to peruse record/status report ::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 3 vehemently argued that no case, if any, is made out against the petitioners under Section 342, 376 and 34 of IPC because medical .
evidence adduced on record, nowhere suggests that victim-prosecutrix was ever sexually assaulted by the bail petitioners and as such, they deserve to be enlarged on bail. Mr. Chandel, while referring to the statement of victim-prosecutrix recorded under Section 164 Cr.PC., further submitted that it clearly suggests that prosecutrix had prior acquaintance with one of the bail petitioner namely Jiwan Lal, and she of her own volition joined their company. Mr. Chandel further submitted that though petitioners deny the allegations, if any, of sexual assault committed upon the prosecutrix, but even if her statement recorded under Section 164 Cr.PC is read in its entirety, it clearly suggests that at no point of time, petitioners forcibly took prosecutrix to the house where she was allegedly raped, rather she of her own joined the company of the petitioners.
Lastly, Mr. Chandel, contended that bail petitioners are behind the bars for more than 1 year for no fault of them and as such, they deserve to be enlarged on bail and there is no likelihood of their fleeing from justice as they are local residents of the area.
6. Mr. S.C. Sharma, learned Additional Advocate General, while opposing the aforesaid prayer having been made on behalf of the petitioners, strenuously argued that keeping in view the gravity of offence ::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 4 allegedly committed by the bail petitioners, they do not deserve to be shown any leniency, rather needs to be dealt with severely. Learned .
Additional Advocate General, while refuting the aforesaid contention of the petitioners that nothing has come in the medical evidence forcefully contended that in the report of RFSL, it has been specifically opined that possibility of sexual assault cannot be ruled out. Mr. Sharma further argued that it is not in dispute that victim/prosecutrix is partially blind and as such, possibility of taking undue advantage of her blindness by the petitioners while committing offence punishable under Section 376 IPC, cannot be ruled out. Lastly Mr. Sharma, contended that matter is already sub-judice before the court below and is fixed for framing of charge and as such, present petition deserves to be dismissed.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. It is not in dispute that victim/prosecutrix is partially blind but if her statement recorded under Section 164 Cr.PC, is read in its entirety, it can be easily inferred that she is/was capable of understanding, rather she could see and recognize people also. She in her statement recorded under Section 164 Cr.PC stated that she has a low vision but since she knew the bail petitioner Jiwan Lal, she could identify him. Statement of her recorded under Section 164 Cr.PC, further suggests that she joined the ::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 5 company of the bail petitioners voluntarily and even accompanied them to room, wherein she was allegedly raped. She has further stated that bail .
petitioners also offered her Rs.500/-, but she stated that somebody may see her alongwith them. Apart from above, perusal of medical report as well as RFSL report nowhere suggests commissioning of offence, if any, under Section 376 of IPC. Medical officer has categorically opined that no marks of resistance were seen on the person of the victim-prosecutrix.
Most importantly, doctor in his opinion has observed that "as per history and examination, last time of sexual intercourse could not be interpreted."
9. Having carefully perused material on record, especially, the statement of prosecutrix recorded under Section 164 Cr.PC, this Court is not persuaded to agree with learned Additional Advocate General that bail petitioners taking undue advantage of her partial blindness, sexually assaulted her against her wishes, rather there appears to be prior acquaintance of the petitioners with the victim-prosecutrix, who of her own volition joined their company. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of evidence adduced on record by the prosecution, but at this stage, this Court having perused material available on record sees no reason to keep the bail petitioners behind the bar for an indefinite period, ::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 6 who have already suffered for more than one year, especially when guilt, if any, of them is yet to be proved in accordance with law. Repeatedly, it .
has been held by the Hon'ble Apex Court as well as this Court that freedom of an individual is utmost importance and cannot be curtailed for an indefinite period.
10. Needless to say, guilt, if any, of the bail petitioners is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. It is well settled that till the time a person is not found guilty, one is deemed to be innocent. 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 has 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 ::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 7 a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced 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 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 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 ::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 8 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.
11. 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.
12. 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 ::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 9 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."
13. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-
" This Court in Sanjay Chandra v. CBI, 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 or 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 to 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 ad 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 the 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."::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 10
14. 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) r danger, of course, of justice being thwarted by grant of bail.
15. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bond in the sum of Rs. 1,00,000/- each with one local surety each in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with 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;::: Downloaded on - 07/08/2018 23:02:50 :::HCHP 11
(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.
16. It is clarified that if any of the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
17. 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 petitions stand accordingly disposed of.
Copy dasti.
6th August, 2018 (Sandeep Sharma),
manjit Judge
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