Himachal Pradesh High Court
Raman vs State Of Himachal Pradesh on 16 November, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 2037 of 2022
Date of Decision:16.11.2022
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Raman ...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. Pranav Sharma, Advocate.
For the respondent Mr. Sudhir Bhatnagar and Mr.
r Narinder Guleria, Additional
Advocate Generals with Ms.
Svaneel Jaswal Deputy Advocate
General.
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Sandeep Sharma, J. (Oral)
Bail petitioner, namely Raman, who is behind the bars since 12.02.2021, has approached this Court in the instant proceedings filed under S.439 Cr.P.C, for grant of regular bail in FIR No. 10 of 2021, dated 12.02.2021 under Ss. 376 and 506 of IPC and Section 4 the POCSO Act, registered at Police Station Nerwa, District Shimla, Himachal Pradesh.
2. Perusal of status report filed on behalf of the respondent-State, reveals that on 11.2.2021, at 7.52 PM, police Station, Chhota Shimla gave telephonic information to police 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/11/2022 20:34:11 :::CIS 2Station, Nerwa with regard to one girl brought to Kamla Nehru Hospital, Shimla for abortion. On 12.02.2021, police official of .
police Station, Nerwa reached Kamla Nehru Hospital, Shimla and recorded statement of the victim/prosecutrix, aged 14 years, under Section 154 Cr.P.C. (name withheld to protect her identity), wherein she alleged that she studies in class 9th at Government Senior Secondary School, Shamtha and her father works as mason. She alleged that 2 ½ months back, certain relatives had come to her house on the eve of Bakrid. She alleged that alongwith her brother-in-law namely, Parveen Tilta, bail petitioner namely, Raman had also come. She alleged that after having dinner all went to their respective rooms to sleep, but after having found her alone person namely, Raman came in her room at 12.00 AM and embraced her. She alleged that though she tried to shout, but since bail petitioner gagged her mouth and extended threats, she could not raise any hue and cry. She alleged that thereafter bail petitioner unclothed her and sexually assaulted her against her wishes. She alleged that ten days before i.e. 3.2.2021, she suffered pain in her abdomen and as such, her father brought medicine. However, on 10.12.2021, her father brought her Shimla for treatment, wherein Doctor after having medically examined her disclosed that she is pregnant. While making statement under Section 154 Cr.P.C victim/prosecutrix alleged that present bail ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 3 petitioner sexually assaulted her against her wishes and as such, appropriate action, in accordance with law, be taken against him.
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In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the present bail petitioner and since then he is behind the bars. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, coupled with the fact that the victim/prosecutrix while deposing before the trial Court has not supported the case of the prosecution, bail petitioner has approached this Court in the instant proceedings for grant of bail.
3. While fairly admitting factum with regard to filing of the Challan in the competent Court of law, Ms. Svaneel Jaswal, learned Deputy Advocate General, submits 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 deserves any leniency. While making this Court to peruse the initial statement of the victim/prosecutrix recorded under Section 154 and 164 Cr.P.C, learned Deputy Advocate General submits that bail petitioner taking undue advantage of innocence and minority of the victim-prosecutrix, sexually assaulted her against her wishes, which fact otherwise stands duly established on record with the report of FSL, wherein bail petitioner has been shown to be biological father of the product of ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 4 conception. She further contends that though in examination-in-
chief victim/ prosecutrix may not have supported the case of the .
prosecution, but cross-examination conducted upon her by learned counsel for the accused establishes factum with regard to forcible sexual intercourse and as such, prayer made on behalf of the petitioner for grant of bail deserves outright rejection. Lastly, learned Deputy Advocate General states that though there is overwhelming evidence collected on record suggestive of the fact that bail petitioner taking undue advantage of innocence and minority of the victim-prosecutrix sexually assaulted her against her wishes, but even otherwise consent, if any, of the victim-
prosecutrix being minor is totally immaterial and as such, no leniency can be shown to the bail petitioner.
4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that initially victim/prosecutrix while getting her statement recorded under section 154 Cr.P.C, specifically alleged that the bail petitioner entered her room at about 12.00 AM, and thereafter embraced her. She also alleged in the aforesaid statement that bail petitioner after having unclothed her, sexually assaulted her against her wishes. However, while deposing before the trial Court as PW-1, she gave altogether different version. In her examination-
in-chief, she stated that in the year 2021, while they were ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 5 celebrating Bakrid at her house, many guests had also come to their house. She deposed that two boys, which included present .
bail petitioner, had come with her brother-in-law. She deposed that she was sleeping alone in her room and bail petition came to her room during night. She deposed that accused wanted to have sex with her, but she refused. She further stated that accused again told her to have sex, but she has refused and thereafter accused masturbated and when there was ejaculation, she gave him her underwear to clean the ejaculated matter. Cross-examination conducted upon this witness by public prosecutrix nowhere suggests that the prosecution was able to extract something contrary to what this witness stated in her examination-in-chief.
Though, in her cross-examination victim/prosecutrix admitted to have given statement to the police mark-'X', wherein she had given altogether different version, but otherwise specifically denied all the suggestions put to her with regard to sexual assault, if any, committed upon her by the present bail petitioner. Victim-
prosecutrix in her cross-examination conducted by learned counsel for the accused stated that accused had not committed sexual intercourse with her. Though, in cross-examination, she stated that she had taken of her apparels but nowhere stated that bail petitioner unclothed her and thereafter made any attempt to sexually assault her against her wishes, rather this witness in her ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 6 cross-examination conducted by learned counsel for the accused stated that when accused masturbated and had ejaculated then his .
semen fell on her private part, which he cleaned with her underwear.
5. Mr. N.S.Chandel, learned Senior counsel representing the bail petitioner, while making this court to peruse statement of the victim-prosecutrix recorded before the trial court, especially examination-in-chief, vehemently argued that once at no point of time victim-prosecutrix stated something specific with regard to penetrative sex and as such, sections 3 and 4 of the POCSO Act are not attracted. He further submitted that as per own version of the victim-prosecutrix, no attempt, if any, was ever made by the bail petitioner of penetration in the private part of the victim/prosecutrix and as such, case registered against the bail petitioner under Section 4 of the POCSO Act, is otherwise not sustainable.
6. Learned Deputy Advocate General while refuting aforesaid contention specifically invited attention of this Court to Section 3 of the POCSO Act, to state that even manipulation of any part of the body is sufficient to constitute penetrative sex. She argued that once victim/prosecutrix in her cross-examination admitted of her having removed her clothes, it is sufficient to conclude that bail petitioner manipulated private parts of the ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 7 victim/prosecutrix, which is sufficient to constitute to "penetrative sex" as defined under Section 4 of the POCSO Act. She submitted .
that factum with regard to penetration stands duly established with the report of FSL, wherein bail petitioner has been shown to be biological father of the fetus in the womb of the victim/prosecutrix.
If the examination-in-chief of the victim/prosecutrix is read in its entirety, it compels this Court to agree with contention of learned counsel for the petitioner that at no point of time victim/prosecutrix stated something specific with regard to touching and manipulation of her private parts by the bail petitioner, rather in her examination
-in-chief she stated that bail petitioner wanted to have sex with her, but she refused. She stated that bail petitioner masturbated and thereafter she gave her underwear to bail petitioner to clean ejaculated matter.
7. Close scrutiny of examination-in-chief, if read in its entirety, certainly suggests that at no point of time bail petitioner manipulated or attempted to penetrate any object in the private part of the victim/prosecutrix, which is otherwise necessary to constitute offence punishable under Section 4 of the POCSO Act .
No doubt cross-examination conducted upon the victim/prosecutrix by learned counsel for the accused suggests that at the time of the alleged incident victim/prosecutrix had removed her apparels but that may not be sufficient to conclude that penetrative sex, if any, ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 8 because even in cross-examination she has not stated specifically with regard to touching and manipulation of her private parts or any .
part of the body.
8. No doubt, FSL report adduced on record clearly suggests that bail petitioner is biological father of the fetus in the womb of the prosecutrix but even qua the same explanation has been attempted to be placed on record by learned Senior counsel representing the bail petitioner while inviting attention of this court to the cross-examination conducted upon the victim/prosecutrix, wherein she has stated that bail petitioner after having masturbated, ejaculated semen on her private part. Further, to prove that pregnancy is possible without there being penetrative sex, Doctor has been examined, wherein while relying upon various medical text books, it has been claimed on behalf of the accused that pregnancy is possible without there being any penetrative sex. This Court while dealing with the case at hand need not to go into the aforesaid aspect of the mater, rather same shall be decided on the totality of evidence led on record by the prosecution. However, after having perused the examination-in-
chief of victim/prosecutrix, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period during trial.
9. Leaving everything aside, this Court finds that statement of the victim/prosecutrix stands recorded and petitioner ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 9 is behind the bars for more than 1 ½ years and as such, no fruitful purpose would be served by letting the bail petitioner incarcerate in .
jail for indefinite period during the trial, conclusion whereof is otherwise likely to take some time.
10. As of today, only 7 prosecution witnesses have been examined out of total 28 witnesses, meaning thereby, in case petitioner allow to incarcerate in jail during trial, he may have to remain behind the bars for another 2-3 years that too without his being declared guilty of offence, if any, committed by him.
11. By now it is well settled that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial.
Delay in trial has been held to be in violation of the right guaranteed under article 21 of Constitution of India. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-
"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 10 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC
569)."
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12. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law.
Apprehension expressed by learned Deputy Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.
13. 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.
14. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 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 bail is to secure the appearance of the accused person at his trial by reasonable ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 11 amount of bail. The object of bail is neither punitive nor preventative.
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15. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the 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. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
17. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing fresh bail bonds in the sum of Rs.50,000/- with one local surety in the like ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 12 amount, to the satisfaction of the learned trial Court, 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.
18. r 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.
19. 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.
20. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
(Sandeep Sharma) Judge 16th November, 2022 (shankar) ::: Downloaded on - 17/11/2022 20:34:11 :::CIS 13 .
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