Himachal Pradesh High Court
Gursharn Singh vs State Of Himachal Pradesh on 8 October, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1014 of 2020
Decided on October 8, 2020
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Gursharn 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 Mr. N.S. Chandel, Senior
Advocate with Mr. Vinod Gupta,
Advocate.
For the respondent Mr. Sudhir Bhatnagar and Mr.
Arvind Sharma, Additional
r Advocates General with Mr.
Kunal Thakur, Deputy Advocate
General, through video-
conferencing.
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Sandeep Sharma, J. (Oral)
Bail petitioner, Gursharn Singh, who is behind bars since 29.6.2018, has approached this Court in the instant proceedings filed under S.439 CrPC for grant of regular bail in FIR No. 111, dated 29.6.2018 registered at Police Station Dehra, District Kangra, Himachal Pradesh under Ss.376, 366 and 302 IPC. Status report filed on behalf of the respondent-State reveals that on 28.6.2018, Police after having received a telephonic information from the owner of Saurabh Hotel, Chintpurni that a girl staying in Room No. 423 in the said hotel alongwith bail petitioner, has expired on account of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 2illness. Police visited the hospital at Chintpurni and sent the body of deceased girl to Dr. Rajinder Prasad Government .
Medical College, Tanda for post-mortem. Besides above, police also informed parents of the deceased and subsequently on the basis of statement made by mother of the deceased girl, arrested the bail petitioner. Complainant, Balbir Kaur, mother of the deceased girl, who reached Chintpurni, after having received information from the Police, got her statement recorded under S.154 CrPC, alleging that her daughter was studying in second year in college and had gone to Fagwara (Punjab) to attend NCC camp. Complainant alleged that her daughter was at Fagwara for NCC camp with effect from 19.6.2018 to 28.6.2018. She alleged that on 28.6.2018, she had enquired about the well being of her daughter, who had come in the contact of the bail petitioner at Dhir Hospital Banga, while the complainant was admitted there.
Complainant alleged that her deceased daughter had disclosed to her before going to Fagwara that the bail petitioner extends threats to her on phone. She alleged that the bail petitioner took her daughter to Chintpurni on 28.6.2018 by exercising coercion, where he forcibly sexually assaulted the deceased against her wishes, as a consequence of which, she died.
Complainant further alleged that the bail petitioner ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 3 administered some medicine to her daughter forcibly, while committing forcible sexual intercourse with her, as a .
consequence of which, her daughter died, as such, appropriate action in accordance with law be taken against him. In the aforesaid background, FIR detailed herein above, came to be lodged against the bail petitioner on 29.6.2018 and since then, he is behind the bars.
2. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the 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 the offence alleged to have been committed by him, he does not deserve any leniency. Mr. Bhatnagar, while making this Court peruse the record, contends that there is overwhelming evidence collected on record by the investigating agency to the effect that the bail petitioner firstly taking undue advantage of innocence of the deceased victim, made her elope with him and then sexually assaulted her against her wishes in a hotel at Chintpurni. Mr. Bhatnagar further submits that the victim died on account of reaction of the medicine, which the bail petitioner applied on her private parts, while committing forcible sexual intercourse with the deceased, as such, he has been rightly booked under ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 4 S.302 IPC besides S.376 IPC. Lastly, Mr. Bhatnagar, while referring to the status report filed by the police, contends that .
prior to the alleged incident, bail petitioner had made similar attempt with 2-3 other girls, as such, having taken note of his antecedents, the bail petitioner does not deserve any leniency.
3. Having heard learned counsel for the parties and perused the material available on record, this Court finds that as per own statement of the complainant (mother of deceased), bail petitioner had prior acquaintance with the deceased and they had been talking to each other on phone. It has also emerged during investigation that prior to alleged incident, bail petitioner had taken the deceased to some other city in Punjab, where though he had made an attempt to have sexual intercourse with the deceased but since the girl was a virgin, petitioner could not succeed in his attempt. It is not in dispute that on 29.6.2018 deceased, who was major at that time, went to Chintpurni, District Una, Himachal Pradesh alongwith bail petitioner on his bike, where both hired room in Hotel Saurabh. Record of the hotel collected by the investigating agency clearly suggests that names of both, bail petitioner and the deceased girl were entered in the register, before their stay in the hotel. Besides above, one Virender Singh, who had given room to the bail petitioner and deceased, nowhere stated that ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 5 the deceased was taken in the room by the bail petitioner against her wishes, rather, he in his statement has stated that .
after taking room, both went inside the room and locked themselves inside the room. Similarly, there is nothing in his statement, from where it can be inferred that the deceased before alleged assault, raised any hue and cry, rather, as per statement of Virender Singh, bail petitioner came down to inform that the deceased was not feeling well and as such, she was taken to hospital where she unfortunately expired. Having taken note of the fact that the deceased was major at the relevant time and she, of her own volition, had gone to Chintpurni with the bail petitioner, this Court does not find any force in the claim of investigating agency that the deceased was coerced by the petitioner to accompany him to Chintpurni. Story coined by the investigating agency with regard to coercion does not appear to be plausible, especially on account of statement of employee of the hotel, who had entered names of the bail petitioner and deceased in the register while giving them room on rent. Rather, having taken note of the fact that the girl had prior acquaintance with the bail petitioner and at earlier point of time, she had visited some city in Punjab with the bail petitioner, this court is inclined to agree with learned senior counsel for the bail ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 6 petitioner that the deceased, of her own volition, had gone to Chintpurni with the bail petitioner. Similarly, this Court .
having perused post mortem report finds that the victim died on account of reaction of medicine i.e. "Lignocaine" gel applied by bail petitioner on the private parts of the deceased. As per post mortem report, cause of death in the case is "lignocaine Hydrochloride toxicity likely due to its absorption from vaginal mucosa and hymnal tear." Learned senior counsel for the petitioner states that the gel used by bail petitioner is a local anaesthesia frequently used during medical procedures and as such, same cannot be said to be injurious, but, whether the gel could be used during sexual intercourse with a view to relieve the pain, is a question, which is of great significance in the present case. Mr. Chandel, learned senior counsel, while making this Court peruse the literature i.e. "Bailey & Love's Short Practice Of Surgery" (26th Edition)(CRC Press), made a serious attempt to persuade this Court to agree with his contention that the gel allegedly used by bail petitioner during alleged sexual intercourse upon the deceased, is commonly used during medical procedures in males and females alike. To buttress his argument, Mr. Chandel, made this Court to read following excerpt from the above literature (available at page 1313 of the book):
::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 7"Urethral catheterisation "Following a thorough hand wash, sterile gloves are donned. The genitalia are cleaned using soapy antiseptic. Lignocaine gel is .
inserted into the urethra, warning the patient that this may create stinging. The jelly should be massaged posteriorly in an attempt to anaesthetise the sphincter region, and it is of advantage to place a penile clamp for several minutes. A small Foley catheter should be passed while the penis is held taut. In a female patient, the labia should be parted using the middle and index fingers of the left hand, which should not be moved once cleaning has been performed. Providing a stricture is not the cause, the catheter should pass freely. Once urine begins to drain, it is wise to pass a few more centimetres of catheter into the bladder before the balloon is inflated to avoid inflation in the prostate. Force must not be used (Summary box 76.4)"
4. Having perused the above literature, this Court finds that Lignocaine gel is applied on internal parts of human body like urethra/penis while inserting catheter to reduce pain, as such, it cannot be said that the gel allegedly used by bail petitioner was totally unsafe to be applied on the private parts of the deceased.
5. At this stage, learned Additional Advocate General contends that though it is yet to be proved in accordance with law that the bail petitioner was aware of adverse effects of the gel, allegedly used by him during sexual intercourse but, even otherwise, there is nothing to infer that the bail petitioner applied the gel with the consent of the girl. But, having noticed conduct of the victim/deceased, which reflects from her ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 8 consent to visit Chintpurni alongwith bail petitioner on his bike, coupled with the fact that she was major at the time of .
alleged incident, this Court is not inclined to agree with the aforesaid submission made by learned Additional Advocate General. Deceased and bail petitioner hired a room in hotel at Chintpurni, Himachal Pradesh, which is few hundred miles from their native place in Punjab and as such, it can be safely presumed that the bail petitioner applied gel in question in good faith to relieve pain of the deceased, who at the time of alleged incident was a virgin and if it is so, bail petitioner is entitled to have benefit of provisions of S.88 IPC, which provides as under:
"88. Act not intended to cause death, done by consent in good faith for person's benefit.--Nothing which is not intended to cause death, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, or be known by the doer to be likely to cause, to any person for whose benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer that harm, or to take the risk of that harm. Illustration A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death and intending in good faith, Z's benefit performs that operation on Z, with Z's consent. A has committed no offence."::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 9
6. While referring to the status report, learned Additional Advocate General on previous date had argued that .
since it stands established on record that the bail petitioner was working as a Pharmacist at Dhir Hospital, Banga, it can be safely concluded that he was aware of the adverse impact/side effects of the Lignocaine gel, used by him. This court, with a view to ascertain the aforesaid claim of learned Additional Advocate General, specifically directed Station House Officer, Police Station Dehra, District Kangra, to verify that in what capacity bail petitioner was working at Dhir Hospital, Banga, prior to the alleged incident. Vide communication dated 24.9.2020, Dhir Hospital, Banga has apprised the police that prior to the alleged incident, bail petitioner was working as a Ward Attendant and he is an under matriculate, as such, it cannot be concluded at this stage that the bail petitioner was aware of the side effects of the gel used by him, but despite still he, with a view to cause harm/injury to the deceased, applied the same on her private parts against her wishes.
7. Besides above the victim was major at the time of alleged offence and as such, it cannot be said that she was not aware of consequences of her being in the company of the bail petitioner, rather she, being an educated and major girl, it ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 10 cannot be said that she was allured by the bail petitioner to visit Chintpurni with him. Besides this, bail petitioner and .
victim were well known to each other and as such, it cannot be said that the bail petitioner taking undue advantage of her innocence made her elope with him and committed forcible sexual intercourse with the deceased against her wishes.
8. 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 glaring aspects of the matter, this Court sees no reason to let bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for more than two years. Though Challan in the case stands filed but only eight prosecution witnesses have been examined, and as such, considerable time is likely to be consumed for conclusion of trial, which otherwise is likely to be further delayed in the wake of Covid-19 pandemic. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, there is no justification to curtail his freedom for an indefinite period during trial. No material worth credence has been placed on record suggestive of the fact that in the event of being enlarged on bail, bail petitioner may flee from justice or ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 11 may prejudice investigation/prosecution. However, Apprehension expressed by learned Additional 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
9. 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 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.::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 12
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 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."
10. In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court has held 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 ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 13 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.
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 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.
12. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc.
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 on bail, subject to furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety in ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP 14 the like amount, to the satisfaction of the Magistrate available at the station, besides the following conditions:
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(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.
15. 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.
(Sandeep Sharma) Judge October 8, 2020 (vikrant) ::: Downloaded on - 12/10/2020 20:17:59 :::HCHP