Himachal Pradesh High Court
Anil Kumar Sharma vs State Of H.P on 12 October, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.MP(M) No. 1462 of 2015.
.
Date of Decision : 12th October, 2015.
Anil Kumar Sharma .....Petitioner.
Versus
State of H.P. .....Respondent.
of
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt
Whether approved for reporting? Yes.
For the Petitioner: Mr. N.S. Chandel, Advocate.
For the Respondent: Mr. Vivek Singh Attri, Deputy
Advocate General
_____________________________________________________
Sureshwar Thakur, Judge (Oral)
The bail petitioner is in judicial custody for his having allegedly committed offences punishable under Sections 354-A and 376 C (d) of the IPC recorded in FIR No. 107/2015 of 22.8.2015 registered at Police Station, Jawalamukhi, District Kangra, H.P., H.P., hence, the instant bail application under Section 439 of the Cr.P.C., has been filed by him for ordering for his release from judicial custody wherein he is extantly lodged.
::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 22. The Investigating Officer/Sub Inspector Balbir Singh is present in Court and has filed a detailed status .
report. Both the prosecutrix(s) are sisters and both are major. The bail applicant is a dental surgeon at PHC Majhin. The prosecutrix Neelam Devi initially entered the clinic of the bail applicant for dental treatment. The bail of applicant is alleged to have administered an injection on her arm as also is alleged to have asked her to apply on rt her breasts an ointment with cotton swab. Subsequently, he took to fondle her breasts, besides asked her to permit him to suck them. Despite her objections, he proceeded to do so. The prosecutrix Neelam left the clinic. However, her sister, Reena Devi who was waiting outside the clinic also proceeded to receive dental treatment from the bail applicant. The prosecutrix Reena Devi, the sister of Neelam Devi, who entered the clinic of the bail applicant after the bail applicant having previously subjected prosecutrix Neelam Devi to penal misdemeanors aforesaid, was also subjected to similar perpetration of penal misdemeanors upon her person by the bail applicant. Apart therefrom, the bail applicant removed her leggings. However, though there is a recital in her ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 3 statement recorded under Section 161 of the Cr.P.C., of the bail applicant having sprayed a potion on her private parts .
as also touched them, yet when the aforesaid fact remains unrecited in her subsequent statement recorded under Section 164 of the Cr.P.C., necessarily then for non incorporation by the prosecutrix of the aforesaid fact in her of statement recorded under Section 164 of the Cr.P.C., the earlier version qua the incident recorded in her statement rt under Section 161 of the Cr.P.C., of the bail applicant having sprayed a potion on her private parts as also having touched them, may prima facie loose its sanctity.
3. Both the prosecutrix(s) though together visited the clinic of the bail applicant, yet prosecutrix Neelam Devi received treatment prior to its having come to be meted to her younger sister Reena who was waiting outside. Assuming that the bail applicant had perpetrated penal misdemeanors upon prosecutrix Neelam Devi, who had visited the clinic of the bail applicant prior to the visit therein of her younger sister Reena Devi, who was waiting outside, yet immediately on prosecutrix Neelam Devi making a departure from the clinic of the bail applicant, was enjoined to narrate the incident to her younger sister ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 4 who was waiting outside besides, was also enjoined to dissuade her from entering the clinic of the bail applicant .
for preventing hers being subjected to penal misdemeanors, as allegedly stood perpetrated on her person by the bail applicant. However, she omitted to do so. Though, she has stated that she vomited yet the place of of hers having proceeded to vomit has not been indicated.
For omission on the part of the prosecutrix Neelam Devi to rt indicate the place where she vomited renders the fact as portrayed by her of hers having vomited after her departure from the clinic of the bail applicant, to be prevaricated. Since hers taking to vomit was sequeled by giddiness or drowsiness on account of an injection having been administered to her by the bail applicant, necessarily then yet she omitted to record in her statement, the preeminent fact of the stage when after her departure from the clinic on treatment having been purveyed to her by the bail applicant, she proceeded to vomit. For omission of the aforesaid fact, the apt conclusion is that she was not rendered unconscious after her departure from the clinic of the bail applicant, nor she purportedly took to vomit immediately after hers egressing therefrom, hence, even ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 5 assumingly if giddiness or drowsiness befell upon her in sequel to an injection having been administered to her by .
the bail applicant then she well could by gestures or by hers holding back her younger sister concerted to dissuade her from entering the clinic of the bail applicant.
However, she omitted to do so. The omission on her part of to by gestures or by hers holding back her younger sister waiting outside the clinic, concert to dissuade her from rt entering the clinic, constrains an inference that the incident which allegedly occurred inside the clinic is shorn of veracity. Besides assuming that she took to vomit after hers having been subjected to penal misdemeanors by the bail applicant inside the latter's clinic yet when she proceeded to do so within the precincts of the hospital, the act of her taking to vomit and wash herself within the precincts of the hospital was an act which would have drawn the immediate attention or attracted the patients waiting to receive treatment at PHC, Majhin. Moreover, prosecutrix Neelam could well have taken to apprise them of the fate which befall upon her inside the clinic of the bail applicant. There is no material on record portraying the fact in hers taking to vomit and wash herself within the ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 6 precincts of PHC, Majhin, having attracted the attention of the patients waiting to receive treatment at PHC, Majhin or .
that she proceeded to narrate to any of them the fate which befell upon her inside the clinic. Obviously then, with her act of taking to vomit or wash herself did not invite or drew the attention of any of the patients waiting of to receive treatment at PHC, Majhin, naturally then, it appears that she was not rendered giddy or drowsy by the rt purported administering of injection on her arm by the bail applicant. Concomitantly then, she appears to have contrived the factum of hers having come to be intoxicated by the injection administered on her arm by the bail applicant besides also qua the factum of purported giddiness and drowsiness having befallen upon her which, purportedly prevented her to awaken her sister waiting outside the clinic of the fate which would, too befall upon her inside the clinic of the bail applicant. However, yet she permitted her younger sister to enter the clinic of the bail applicant to receive dental treatment therein. The lack on her part to convey her younger sister about the alleged perpetration upon her of penal misdemeanors by the bail applicant also hers having omitted to warn her of the fate ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 7 which would too befall upon her, constrains an inference from this Court that prima facie the incident attributed to .
the bail applicant is not only tainted, as also, is concocted.
Even though, the younger sister of the prosecutrix Neelam Devi, namely Renna Devi who subsequent to her elder sister Neelam Devi having received dental treatment from of the bail applicant in his clinic ingressed therein has too alleged the factum of the bail applicant having subjected rt her to penal misdemeanors. Nonetheless, the factum of her elder sister, Neelam Devi having not awakened her about the fate which would befall upon her rather she having permitted her to enter the clinic of the bail applicant, constrains this Court to also conclude that she along with her elder sister has prima facie contrived a false and engineered story qua the occurrence. Apart therefrom, the younger sister of Neelam Devi, who subsequent to the former having received treatment inside the clinic of the bail applicant proceeded therein to receive dental treatment from the bail applicant and when her elder sister is assumed to be waiting outside, was also enjoined to attract her attention or also her elder sister was enjoined to enter the clinic of the bail applicant to ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 8 preclude the fate which she met inside the clinic of the bail applicant not befalling upon her younger sister. Ms. .
Reena Devi, the younger sister of Neelam Devi also omitted to raise any cry to attract the attention of the patients who were waiting outside the clinic for treatment nor Neelam Devi entered the clinic though present within of the precincts of PHC, Majhin to ensure that the fate which befell upon her not befalling upon her younger sister. The rt omissions aforesaid also constrains this Court to conclude that both have prima facie contrived an engineered or a concocted version qua the incident.
4. The learned Deputy Advocate General contended before this Court that the fondling of the breasts of the prosecutrix Neelam by the bail applicant, besides his having sucked them as also his taking to remove the leggings of Reena Devi besides, his having sprayed a potion on her private part are all misdemeanors which fall within the ambit and domain of Clause (c) to Section 375 of the IPC which stand extracted hereinafter:-
"375. Rape- A man is said to commit "rape"
if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 9 woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a .
part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the of vagina, urethra anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to vagina, anus, rt urethra or a woman or makes her to do so with him or any other person"
However, even if the bail applicant assumingly in the manner aforesaid attributed to him by the prosecution at this stage, manipulated the private parts of each of the prosecutrix(s) yet on a reading of clause (c) to Section 375 of the IPC, the manipulation of any part of the body of a woman at the instance of bail applicant is enjoined ultimately to lead towards the bail applicant penetrating his penis into vagina, urethra, anus or any part of body of the prosecutrix. The touching and manipulation of any part of the body of the woman ought to have the sequeling consequence of his by his preceding preparatory, stimulatory titillations thereon, his causing penetration ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 10 of his penis into the vagina, urethra, anus or any part of the body of the prosecutrix. The causatory effect of the .
manipulations at the instance of the accused concerned of any part of the body of the prosecutrix(s), is one of his penis penetrating into the vagina, urethra, anus or any other part of the prosecutrix(s). The mere manipulation or of touching of any part of the prosecutrix(s) without it being succeeded by the accused concerned penetrating his rt penis into the vagina, urethra, anus or any part of the body of the woman would not be an appropriate construction to be placed upon clause (c) to Section 375 of the IPC, rather would beget conflict with the provisions of Section 354 of the IPC as also with the provisions of Section 511 of the IPC. To avoid conflict inter se the aforesaid provisions, as also, to not render redundant the provisions of Section 354 as also, the provisions of Section 511 of the IPC, whose provisions have been permitted to be workable by the legislature, besides kept in operation, for in case they were contemplated by the legislature while its amending the definition of "rape" engrafted in Section 375 of the IPC, of theirs necessitating their abrogation or repeal, the legislature would have ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 11 also proceeded to repeal or abrogate from the relevant statute book the provisions of Section 354 of the IPC as .
also the provisions of Section 511 of the IPC. However, when the legislature has not repealed either the provisions of Section 354 of the IPC or also the provisions of Section 511 of the IPC, concomitantly leaves this Court to conclude of that both the provisions aforesaid when stand workable on the statute book, their workability as well as their rt existence on the statute book ought not to be negated, so as to beget a conflict thereof vis-a-vis clause (c) of Section 375 of the IPC. Consequently, the argument of the learned Deputy Advocate General that the mere touching of any part of the body of the prosecutrix, even when does not sequel penetration of the penis of the bail applicant into the vagina, urethra, anus or any part of the body of the prosecutrix per se constitutes attraction of clause (c) to Section 375 of the IPC to the penal misdemeanors of the bail applicant, stands rejected. In aftermath, prima facie at this stage, the perpetration, if any, of alleged penal misdemeanors by the bail applicant on the persons of the prosecutrix(s) may constitute offences under Sections 354 and 511 of the IPC. As such, this Court deems it fit, ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 12 appropriate and just to not prolong the judicial incarceration of the bail applicant whose prolongation .
would not serve any useful purpose rather, would unnecessarily fetter or curtail his liberty. Moreover, what constrains this Court to grant the indulgence of bail to the bail applicant is the fact that no material has been placed of on record by the prosecution portraying that in the event of bail being granted to the bail petitioner, there is every rt likelihood of his fleeing from justice or tampering with prosecution evidence, as a sequel, then, the bail petitioner is entitled to the indulgence of bail. Consequently, the present bail application is allowed and the indulgence of bail is granted to the bail applicant subject to compliance of the following conditions:-
(i) that the bail applicant shall furnish personal bond in the sum of Rs.50,000/- with one local surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Kangra at Dharamshala, H.P.;
(ii) that the bail applicant shall join the investigation, as and when required by the Investigating Agency;::: Downloaded on - 15/04/2017 19:11:18 :::HCHP 13
(iii) that he shall not directly or indirectly, make any inducement, threat or promise to any person .
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iv) that he shall not leave India without the prior of permission of the Court ;
(v) that he shall deposit his passport(s), if any, with rt the SHO, Police Station concerned;
4. With the aforesaid observations the present petition stands disposed of. It is, however, made clear that the findings recorded hereinabove will have no bearing on the merits of the case.
Dasti Copy.
(Sureshwar Thakur) 12 th October, 2015. Judge.
(jai) ::: Downloaded on - 15/04/2017 19:11:18 :::HCHP