Himachal Pradesh High Court
Akbar Alias Rinku vs State Of Himachal Pradesh on 21 June, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No.728 of 2019 Reserved on : 19.6.2019 Date of decision : 21st June,2019 Akbar alias Rinku ... Petitioner.
Versus
State of Himachal Pradesh
r ...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 No For the Petitioners : Mr. R.L. Chaudhary and Mr. H.R. Sidhu, Advocates.
For the Respondent : Ms. Ritta Goswami, Additional Advocate General and Ms. Divya Sood, Deputy Advocate General for State.
Anoop Chitkara, Judge The present petition is under Section 438 of the Code of Criminal Procedure, seeking anticipatory bail in F.I.R.
No.07/2019, dated 26.4.2019, registered at Women Police 1 Whether reporters of Local Papers may be allowed to see the judgment?
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Station, Sadar Bilaspur, District Bilaspur, H.P., under Sections .
376, 506, 34 of the Indian Penal Code.
2. ASI Suman Lata, from Women Police Station, Sadar Bilaspur, District Bilaspur, H.P., was present on the last date, when the matter was heard. She had brought the police file. I have seen the status report, which is on record.
3. I have heard Mr. R.L. Chaudhary and Mr. H.R. Sidhu, learned counsel for the petitioner and Ms. Ritta Goswami, learned Additional Advocate General for the respondent/State. Learned counsel for the petitioner states that the accused had joined the investigation as and when the Investigating Officer so directed him. Learned Additional Advocate General did not dispute this averment.
4. The gist of the First Information Report and the investigation is as follows:
(a) That the victim (name withheld) gave a written complainant to the Superintendent of Police, Bilaspur, in which she wanted F.I.R. under Sections 376, 506, 354 of the Indian Penal Code to be registered against one Rafiq Mohammad and Akbar @ Rinku, the present bail petitioner.::: Downloaded on - 28/09/2019 23:44:06 :::HCHP
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(b) She stated that on 5.1.2019 at around 9:00 pm. (night), she had gone with her husband to .
drop him to the vehicle in which he was taking the buffaloes to Kurali market in Punjab. He left, but however, she did not accompany him up to Kurali and she returned back to her home from a lonely forest road.
(c) On the way, in an isolated place, the accused were hiding and on seeing the victim, they came towards her.
(d) The accused Rafiq mohammad caught hold of the victim from both her arms and then opened the sting of her Salwar, thereafter, he penetrated his penis in her vagina and committed rape upon her. The victim raised hue and cry and then Akbar @ Rinku, the present bail petitioner gagged her mouth with his palm and warned her that if she raises commotion then she would be killed and her dead body would be buried on some side of the road.
(e) After committing rape and indecent assault, the accused persons left from the spot. While going back, they threatened her by calling her name that if she would tell this incident to anyone, then she would not be spared.
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(f) They kept on threatening her repeatedly and on 6.4.2019, she told the entire incident to her .
husband.
(g) Thereafter, she alongwith her husband and father-in-law went to Police Station, Jhanduta to get the F.I.R. registered. However, the Police did not register any F.I.R. on 10th, 11th and 12th of April, 2019 and to the contrary instigated the villagers to create pressure on the victim. Due to this pressure, she entered into compromise with them.
(h) The accused persons threatened her openly by calling her name that she could do nothing to them. They also threatened her that they would again commit rape upon her. She stated that it would put her honour at stake, therefore, she asked for registration of the present F.I.R.
Hence, F.I.R. under Sections 376, 506, 34 of the Indian Penal Code was registered.
5. The petitioner, in his bail petition, has annexed Annexure P-1 which is a compromise between the victim and the accused persons. In this compromise, the accused persons have asked for forgiveness from the victim.
However, what was the fault for which they were asking for ::: Downloaded on - 28/09/2019 23:44:06 :::HCHP ...5...
forgiveness, is not mentioned. It is further mentioned that in .
future, they would live with love and affection and will not nurture any grudge against each other.
6. Vide Annexure P-2, the petitioner has also placed on record the proceedings of the Panchayat dated 20.4.2019.
In this context, there is reference of the previous compromise dated 12.4.2019 between the parties, in which some money transaction is also mentioned. Surprisingly, the Panchayat was also giving reference of a sum of Rs.5,00,000/- to be paid through cheque. It was further mentioned in this compromise that all the intellectuals of the Panchayat wanted to ascertain the truthfulness of the dispute. To ascertain that, they used the time tested method of oath before, their holy book 'Kuran'. But, when Kareem and Saleem (husband of the victim), were asked to swear on the 'Kuran' then they ran away from the spot. Because of this conduct, the Panchayat presumed that these boys are innocent. The Panchayat also asked that there is no need to pay a sum of Rs.5,00,000/- and it is further stated that the allegations of scuffle and beatings are false.
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7. The most material evidence which can be .
gathered from reading of Annexure P-2, is that there is no mention of any rape, rather in the last portion of Annexure P-2, the proceedings of Panchayat, there is a mention of scuffle due to assault. Even, in Compromise (Annexure P-1), there is no mention of rape. There is no doubt that this kind of Kangaroo Panchayat, has no place in the eyes of law. This is a matter of great shame that still Panchayats sit over the Investigation Agencies and Judiciary and try to control and decide those matters between the parties which are beyond their jurisdiction and scope. Neither, anyone can look into such Annexures for whatsoever purpose, nor I am inclined to look into such Annexures.
8. On the first look, all the allegations appear to be very serious in nature. However, in the light of the fact that there is dispute between the complainant and the accused, her credibility can be ascertained only when she is put to cross examination during trial. I am satisfied that the no purpose will be served if the bail petitioner is sent to judicial ::: Downloaded on - 28/09/2019 23:44:06 :::HCHP ...7...
custody. Therefore, I am inclined to grant bail to the .
petitioner, on the following grounds.
a) In the status report, there is no mention of previous criminal history of the bail petitioner.
b) The bail petitioner is only 19 years of age. At such a young age to send him to judicial custody, would be making him confine with the hardened criminals. It might have traumatic psychological effect on him.
c) As per the allegations of the prosecutrix, initially he did not participate in the commission of crime, but however, he did not even try to save her.
d) As per the prosecutrix, after the rape had been committed, then he threatened her not to raise cries.
No role was assigned to him of putting any pressure on her at initial stage or to control her by physical efforts.
e) The incident was of 5.1.2019 and even if everything is believed, then there is no believable explanation that why for the first time, she went to the Police Station, only on 10.4.2019, i.e. after 3 months.
f) As per the allegations of the prosecutrix, she had narrated the incident to her husband on 6.4.2019, so this delay creates some doubt and at least makes out a case for bail.
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g) The petitioner is a native and permanent resident of .
address stated in Memo of Parties. Therefore, his presence can always be secured. I am of the considered view that, prima facie, petitioner has made out a case for grant of bail. His custodial interrogation is not required at all.
9. In the result, the present petition is allowed. In the event of arrest of the petitioner, he shall be released on bail, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs.5,000/- with one surety in the like amount to the satisfaction of the Arresting Officer.
10. This Court is granting the protection subject to the conditions mentioned in this order. The petitioner undertakes to comply with all directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all such conditions:
a) The petitioner is directed to join the investigation as and when called by the Investigating Officer. It shall be open for the Investigating Officer to call him as and when he feels such a necessity. The petitioner undertakes to appear before the Investigating Officer ::: Downloaded on - 28/09/2019 23:44:06 :::HCHP ...9...
as and when directed to do so. However, whenever the investigation takes place within the boundaries .
of the Police Station or Police Post, then the Petitioner shall not be called before 9 A.M and shall be let off before 5 p.m.
b) The Petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.
c) The petitioner undertakes not to contact the complainant, to threaten or browbeat her or to use any pressure tactics.
d) The Petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
e) The Petitioner shall not hamper the investigation.
f) In case of the launching of the prosecution, the petitioner undertakes to attend the trial and to appear before the Court which issues the summons or warrants and shall furnish fresh bail bonds to the satisfaction of such Court.
g) In case the petitioner tries to contact the victim or her family members or to influence them or threaten them, then either the victim or the State shall have complete rights to bring such incident to the notice of this Court by filing ::: Downloaded on - 28/09/2019 23:44:06 :::HCHP ...10...
an application for cancellation of bail under Section 439(2) of the Code of Criminal .
Procedure.
11. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
Petition stands allowed in the aforesaid terms.
Copy dasti.
(Anoop Chitkara), Judge.
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