Himachal Pradesh High Court
Dilawar Singh Alias Sonu vs State Of Himachal Pradesh on 6 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 2786 of 2023 .
Reserved on: 23.11.2023 Date of Decision: 06.12.2023.
Dilawar Singh alias Sonu ...Petitioner
of
Versus
State of Himachal Pradesh
rt ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Vikas Rathore, Advocate.
For the Respondent : Mr. Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that FIR No. 53 of 2023, dated 13.2.2023 was registered against the petitioner at Police Station Nurpur, District Kangra, H.P. for the commission of offences punishable under Sections 363, 366-A, 376, 323, 506, 368 & 212 of IPC and Sections 6, 12 and 17 of the Protection 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 06/12/2023 20:34:56 :::CIS 2of Children from Sexual Offences Act (POCSO Act). The petitioner has been falsely implicated. He has nothing to do with .
the commission of the offences. The investigation is complete and the charge sheet has been filed before the Court. No recovery is to be effected from the petitioner. The petitioner would abide by all the terms and conditions, which may be imposed by the of Court. Hence, this petition.
2. rt The police filed a status report, asserting that the victim's father made a complaint to the police on 13.2.2023 that the victim had been missing since 12.2.2023. The police registered the FIR and recovered the petitioner and victim from Manali on 3.3.2023. The victim was born on 1.9.2006. As per the result of the analysis, the DNA taken from the lower underwear of the victim matched with the DNA of the petitioner. The challan was prepared and presented before the Court and the matter is now listed for recording the evidence of prosecution witnesses on 10th, 11th and 12th of January 2024.
3. I have heard Mr. Vikas Rathore, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State.
::: Downloaded on - 06/12/2023 20:34:56 :::CIS 34. Mr. Vikas Rathore, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely .
implicated. The victim had not made any complaint to the police which showed her consent. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
of
5. Mr. Prashant Sen, learned Deputy Advocate General rt submitted that the victim was minor and incapable of consenting. The report of DNA analysis corroborates the version of the prosecution that the victim was sexually assaulted by the petitioner; therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-
12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be ::: Downloaded on - 06/12/2023 20:34:56 :::CIS 4 exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may .
vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there rt being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence ::: Downloaded on - 06/12/2023 20:34:56 :::CIS 5 and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie .
concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
of
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
rt
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.
Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the ::: Downloaded on - 06/12/2023 20:34:56 :::CIS 6 basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while .
considering an application for bail are:
(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 of conviction;
(iv) danger of the accused absconding or fleeing, if rt 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.'
9. The present case has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
10. As per the status report, the date of birth of the victim was found to be 1.9.2006; therefore, the victim was minor on the date of the incident.
11. It was submitted that the status report contains the statement of the accused which is not a legally admissible piece of evidence and does not mention the statement of the victim;::: Downloaded on - 06/12/2023 20:34:56 :::CIS 7
therefore, it cannot be said that the victim was subjected to sexual intercourse against her consent. It is true that the status .
report only mentions what was disclosed by the accused to the police during the investigation which is inadmissible under Section 25 of the Indian Evidence Act. Therefore, the same does not constitute a legally admissible piece of evidence. However, of the status report mentions that the DNA profile taken from the underwear and the lower of the victim matched with the DNA rt profile of the petitioner, which clearly shows that the petitioner had subjected the victim to sexual intercourse. Hence, there is sufficient material on record, at this stage, to connect the petitioner with the commission of offences punishable under Section 376 of IPC and Section 6 of the POCSO Act.
12. It was submitted that the victim had not made any complaint to any person which showed her consent. This submission will not help the petitioner because the victim being a minor was incapable of consenting. The legislature enacted the POCSO Act to protect the children from themselves as well as from others, who are minded to prey upon them. (please see R v Corran [2005] EWCA Crim 192, para 6). The children are deemed to be incapable of consent and consent is no defence in the ::: Downloaded on - 06/12/2023 20:34:56 :::CIS 8 offences punishable under POCSO Act. Dealing with the plea of consent under the Sexual Offences Act 2003 (which is almost .
similar to the POCSO Act but for the age, which is 13 under the Sexual Offences Act, 2003 and 18 under the POCSO Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37 as under:
"44. Section 5 of the 2003 Act has three main features.
of First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; secondly, it applies to such penetration of rt a child under 13 of either sex; and thirdly it calls this "rape". This is its novel feature but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as "statutory rape". This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.
45. There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906, per McLachlin J. It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13, it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.::: Downloaded on - 06/12/2023 20:34:56 :::CIS 9
Xxx
54. In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the .
label "rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view, this does not engage the Article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life "covers the physical and moral integrity of the person, including his or her sexual life" (X and Y v The Netherlands, para 22). This does not mean that of every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, rt vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.
55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed "rape". The word "rape" does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from underage sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view, the prosecution, conviction and sentence were both rational and ::: Downloaded on - 06/12/2023 20:34:56 :::CIS 10 proportionate in the pursuit of the legitimate aims of the protection of health and morals and the rights and freedoms of others."
.
13. Dealing with the dangers of premature sexual activities, the Court held:
"Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected of whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at rt the time. More importantly, anyone who has practised in the family courts is only too well aware of the long-term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one."
14. Thus, the submission made by learned counsel for the petitioner that the relationship was consensual will not help the petitioner in any manner.
15. The petitioner is aged 21 years and it cannot be said that he was unaware of the consequences of his act. The petitioner being mature enough should have taken care before entering into the physical relationship with the victim, who was less than 18 years of age. The repeated sexual acts show that the ::: Downloaded on - 06/12/2023 20:34:56 :::CIS 11 nature of the act is heinous and cannot be viewed lightly.
Therefore, keeping in view the nature of the act, the petitioner is .
not entitled to be released on bail, hence, the present petition fails and the same is dismissed.
16. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, of whatsoever, on the merits of the case.
rt (Rakesh Kainthla)
Judge
6th December, 2023
(Chander)
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