Cr. MP(M) No.168 of 2015

27th March, 2015

Petitioner Counsel: Mr. DALIP K. SHARMA
Respondent Counsel: Mr. M.L. CHAUHAN, Addl. Mr. J.S. RANA
Other Counsel: Mr. PRADEEP K.SHARMA

Cases Cited:
Gurcharan Singh & Ors. Vs. State (Delhi Administration), AIR 1978 SC 179 [Para 8]
The State Vs. Captain Jagjit Singh, AIR 1962 SC 253 [Para 8]

JUDGMENT

JUDGMENT :- Present petition is filed under Section 439 of the Code of Criminal Procedure 1973 for grant bail in connection with FIR No.146 of 2014 dated 10.6.2014 registered under Sections 376-D, 366, 506 and 120B of the Indian Penal Code at Police Station Hamirpur HP.

2. It is pleaded that petitioner has been falsely implicated in the present case and petitioner has nothing to do with the commission of offence and petitioner is innocent. It is further pleaded that there is no incriminating evidence against the petitioner. It is pleaded that there is no one in the family to look after ailing mother of the petitioner. It is pleaded that no recovery is to be effected from the petitioner. It is pleaded that petitioner will not tamper with the prosecution witness and will co-operate with the investigation of the case and will abide by all the terms and conditions imposed by the Court. Prayer for acceptance of bail petition filed under Section 439 Cr.P.C sought.

3. Per contra police report filed. There is recital in police report that FIR No. 146 of 2014 dated 10.6.2014 has been registered against the petitioner under Sections 376D, 366, 506 and 120B IPC at Police Station Hamirpur HP. There is recital in police report that on dated 10.6.2014 prosecutrix came in Police Station. There is recital in police report that prosecutrix is learning stitching work at Nalti and her husband is working in Ambuja Cement Factory at Darlaghat and she has one son aged four years. There is recital in police report that on dated 26.5.2014 prosecutrix reached at 10.05 AM in the stitching centre at Nalti when no other lady was present. There is recital in police report that co-accused Sahil @ Sunil came there and snatched her scarf. There is recital in police report that thereafter on dated 27.5.2014 at 10.15 AM when the prosecutrix was standing in the stitching centre co-accused Sahil @ Sunil along with two other persons came in a white vehicle and forcibly placed the prosecutrix inside the vehicle and took prosecutrix towards Masiyana side. There is recital in police report that prosecutrix cried but accused persons closed the mouth of the prosecutrix. There is recital in police report that thereafter co-accused Sahil @ Sunil and other accused persons boarded down the prosecutrix from the vehicle and took the prosecutrix towards forest. There is recital in police report that co-accused Sahil @ Sunil along with other co-accused Ajay Kumar committed rape with the prosecutrix and thereafter left prosecutrix in the forest. There is recital in police report that when the prosecutrix reached in her house co-accused Sahil @ Sunil telephoned the prosecutrix upon mobile and threatened the prosecutrix that in case she would disclose the incident to anybody then accused persons would kill her son. There is recital in police report that due to fear prosecutrix did not narrate the incident to anybody. There is recital in police report that on dated 9.6.2014 co-accused Sahil @ Sunil again telephoned prosecutrix and demanded Rs.5,000/- (Five Thousand). There is recital in police report that thereafter prosecutrix narrated the incident to her husband and her husband went to the shop of co-accused Sahil @ Sunil at Nalti. There is recital in police report that during the investigation medical examination of the prosecutrix was conducted in Regional Hospital Hamirpur and MLC obtained. There is recital in police report that prosecutrix had filed written application before Medical Officer that she did not want her internal medical examination. There is recital in police report that site plan was prepared and clothes worn at the time of alleged incident by prosecutrix were took into possession. There is recital in police report that co-accused Sahil @ Sunil was arrested on 10.6.2014 and vehicle having registration No. HP-01-H 2872 also took into possession. There is recital in police report that co-accused Ajay Kumar and driver of the vehicle Sunil Kumar @ Shami were arrested on dated 15.6.2014. There is recital in police report that the statement of the prosecutrix was also recorded under Section 164 Cr PC before learned Judicial Magistrate Ist Class Hamirpur. There is recital in police report that during the investigation of the case it was found that on dated 27.5.2014 co-accused Sunil Kumar @ Shami committed criminal conspiracy with co-accused Ajay Kumar and forcibly lifted the prosecutrix in a taxi having registration No. HP 01-H-2872 and brought the prosecutrix in Amroh forest. There is recital in police report that thereafter driver of the vehicle namely Sunil Kumar brought back the vehicle and co-accused Ajay Kumar and co-accused Sunil Kumar took the prosecutrix behind the bushes and forcibly committed sexual intercourse with the prosecutrix. There is recital in police report that during the investigation it was found that after committing forcible sexual intercourse upon the prosecutrix in a forest behind the bushes co-accused Sunil Kumar @ Sahil and co-accused Ajay Kumar fled from the place of incident and thereafter accused persons have threatened the prosecutrix that they would kill her son in case she would narrate the incident to any person.

4. Hema Rani prosecutrix intervener also filed application for impleading her co-party and her application was allowed and she was heard by the Court.

5. Following points arise for determination in the present bail petition:

(1) Whether petition filed under Section 439 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of bail petition?.

(2) Final Order.

6. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the respondent and learned Advocate appearing on behalf of intervener and also perused entire records carefully.

Finding upon Point No.1.

7. Submission of learned Advocate appearing on behalf of the petitioner that petitioner is innocent and he has been falsely implicated in the present case cannot be decided at this stage. Same fact will be decided when case shall be decided on its merits by learned trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case.

8. Another submission of learned Advocate appearing on behalf of the petitioner that there is nothing incriminating against the petitioner in order to connect the petitioner with the commission of offence and on this ground bail petition be allowed is rejected being devoid of any force for the reason hereinafter mentioned. Court has carefully perused police report and as per police report co-accused Sunil Kumar @ Sahil and co-accused Ajay Kumar infurtherence of criminal conspiracy took the prosecutrix in a forest and thereafter co-accused Sunil Kumar @ Sahil and co-accused Ajay Kumar committed rape upon the prosecutrix in a forest. There is direct allegation against petitioner qua commission of gang rape. Sexual offences are increasing in the society day by day and the allegations against the petitioner are very heinous and grave in nature qua an offence punishable under Section 376D IPC of gang rape. It is well settled law that at the time of granting bail following factors are to be considered (i) Nature and seriousness of offence (ii) Character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. Even the statement of the prosecutrix was recorded under Section 164 Cr.PC by learned Judicial Magistrate Hamirpur HP.

9. Another submission of learned Advocate appearing on behalf of petitioner that prosecutrix has lodged an FIR under the influence of her relatives and in view of the affidavit given by the prosecutrix bail petition filed by the petitioner be allowed is also rejected being devoid of any force for the reason hereinafter mentioned. Court is of the opinion that affidavit placed on record is subject to proof as per Indian Evidence Act 1872 before the learned trial Court. Court is of the opinion that it is not expedient in the ends of justice to release the petitioner on bail on the basis of affidavit given by intervener Hema Rani placed on record in view of the fact that statement of prosecutrix recorded by learned Judicial Magistrate Hamirpur HP under Section 164 of the Code of Criminal Procedure 1973. Court is of the opinion that affidavit of prosecutrix will not over-ride 164 statement of prosecutrix recorded by learned Judicial Magistrate HP.

10. Submission of learned Additional Advocate General appearing on behalf of the respondent that offence against petitioner is heinous and grave in nature and bail petition filed by the petitioner be rejected is accepted for the reason hereinafter mentioned. Court is of the opinion that in view of the heinous and grave allegation of gang rape it is not expedient in the ends of justice to release the petitioner on bail at this stage. Court is of the opinion that if petitioner is released on bail at this stage then trial of the case will be adversely effected. Court is of the opinion that it is not expedient in the ends of justice to release the petitioner on bail till testimony of the prosecutrix is not recorded by the learned trial Court in accordance with law. Court is of the opinion that if petitioner is released on bail at this stage of case then interest of State and general public will be adversely effected. Hence point No.1 is answered in negative.

Final Order.

11. In view of the above stated facts bail petition filed under Section 439 of the Code of Criminal Procedure 1973 is rejected. Observation made hereinabove is strictly for the purpose of deciding the present bail petition and it shall not effect merits of the case in any manner. However petitioner will be at liberty to file fresh bail application after recording the testimony of the prosecutrix by learned trial Court during the trial of the case. As the petitioner is in judicial custody learned trial Court will dispose of the case expeditiously in accordance with law. Bail petition is disposed of. All pending application(s) if any are also disposed of.

Petition dismissed.