Allowed

Rajinder Singh v. State of Hp

Himachal Pradesh HC13 Nov 2019CRMPM/1826/2019

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh allowed the bail petition of Rajinder Singh, accused of kidnapping and sexual assault on minors, noting contradictions in victim statements, lack of violence, and prior acquaintance. Relying on principles of presumption of innocence, the Court enlarged the petitioner on personal bond and sureties.

What did the court decide?

Petitioner enlarged on bail subject to personal bond of Rs. 2,00,000 with two sureties and specific conditions regarding appearance and non-interference.

Rajinder Singh Vs State of Hp — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2019)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No.1826 of 2019

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Date of Decision: 13^th November, 2019

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____________ ______________________________________________ Rajinder Singh …….. Petitioner Versus State of Himachal Pradesh …..Respondent. __________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹

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For the petitioner: Mr. Yashveer Singh Rathore & Mr. Ajit Sharma, Advocates. For the respondent: Mr. Sanjeev Sood,Additional Advocate General, with Mr. Kunal Thakur, Deputy Advocate General. __________________________________________________________ Sandeep Sharma, Judge (oral):

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Bail petitioner namely, Rajinder Singh, who is behind the bars since 2.4.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.24 of 2019, dated 31.3.2019, under Sections 363, 376, 506 120B of IPC read with Sections 4 & 6 of POCSO Act, registered at police Station, Janjehli, District Mandi, Himachal Pradesh.

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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Sequel to order dated 15.10.2019, ASI Mohan Joshi

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has come present alongwith the record. Mr. Kunal Thakur, learned Deputy Advocate General, has also placed on record fresh status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.

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Close scrutiny of the record/status report, reveals that on 31^st March, 2019, FIR, detailed hereinabove, came to be lodged at the behest of complainant namely, Sh. Som Krishan, who in his statement recorded under Section 154 Cr.P.C., alleged that her minor daughter (first victim/ prosecutrix) ( name withheld to protect her identity) , who was studying in class 10+1 at Government Senior Secondary School, Chhatri, has gone missing. Complainant alleged that it has transpired that her minor daughter alongwith other girl(second victim/ prosecutrix) ( name withheld to protect her identity) , who is daughter of Sh. Krishan Lal VPO Chhatri, have been kidnapped by three boys, who had come in red car bearing registration No. HP882894. On the basis of aforesaid complaint, FIR bearing No.24/2019 came to be

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lodged under Section 363 of IPC against the unknown persons at police Station Janjehli, District Mandi, H.P. During the investigation police recovered minor daughter of the complainant alongwith other girl from the car bearing registration No. HP882894 at place Magrugalla, whereafter police got the statements of the victims/ prosecutrix (two in number) recorded under Section 164 Cr.P.C., in the Court of learned Judicial Magistrate, 1^st Class, Gohar, District Mandi, H.P. On the basis of the statements given by the victims/prosecutrix to the police as well as Magistrate under Sections 161 and 164 Cr.P.C., respectively, police booked the present bail petitioner alongwith other coaccused namely, Rajinder Singh, Rajesh Kumar and Jai Pradha under Sections 363, 366, 376, 506, 120B of IPC and Section 4 and 6 of POCSO Act. Bail petitioner alongwith other coaccused came to be arrested on 2.4.2019 and since then he is behind the bars. Co accused namely Rajesh Singh and Jai Pardha stand enlarged on interim bail.

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Mr. Kunal Thakur, learned Deputy Advocate

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General while fairly stating that investigation in the case is

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complete and nothing remains to be recovered from the bail petitioner, strenuously argued that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, prayer having been made on behalf of the bail petitioner for grant of bail may be rejected outrightly. Learned Deputy Advocate General while making this Court to peruse the statements having been made by the victims/prosecutrix, contended that present bail petitioner not only kidnapped two minor girls, rather sexually assaulted them against their wishes and as such, prayer having been made by him for grant of bail deserves outright rejection. Mr. Thakur, contended that since it has come in the investigation that coaccused Rajesh Singh, who stands enlarged on bail only helped co accused Bhupinder Kumar and Rajinder Singh for the commission of offence punishable under Section 376 of IPC and as such, no parity can be claimed by bail petitioner on account of the bail granted by this Court to coaccused namely, Rajesh Singh. He further contended that similarly bail granted to Jai Pradha is on altogether different grounds,

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whereas as per the investigation present bail petitioner alongwith other coaccused Rajinder Singh not only kidnapped victims/prosecutrix, but he sexually assaulted both the victims/prosecutrix against their wishes that too after breaking the house of some person. Lastly, Mr. Thakur, contended that though there is ample evidence suggestive of the fact that victims/prosecutrix were kidnapped, but even for the sake of arguments if it is presumed that victim/prosecutrix had gone with their own volition, their consent, if any, is of no relevance as both of them were minor at the time of commission of offence.

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Having heard learned counsel representing the parties and perused the material available on record, especially statements having been made by both the prosecutrix under Section 164 Cr.P.C, this Court is convinced and satisfied that both the prosecutrix of their own volition joined the company of bail petitioner and other coaccused. One of the prosecutrix though in her statement made under Section 164 Cr.P.C., has stated that she was forcibly pushed into the car being driven by the present bail petitioner, but if

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the statement of another victim/prosecutrix is read in its entirety, it clearly suggests that one of the prosecutrix was already known to the present bail petitioner and coaccused and in fact she insisted other victim/prosecutrix to come and sit in the car. One of the victim/prosecutrix in her statement recorded under Section 164 Cr.P.C., stated that incident happened in the morning hours, whereas another victim/prosecutrix has stated that she was forcibly taken in the car in the evening. Similarly, there are material contradictions in the statements of both the prosecutrix with regard to sequence of events, allegedly took place prior to alleged commission of offence, if any, punishable under Section 376 of IPC.

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Apart from above, it is quite apparent from the statements of both the prosecutrix that they were introduced to bail petitioner and other coaccused by coaccused namely, Jai Pradha, who happened to be their sisterinlaw (Bhabi). It also emerge from the record that both the prosecutrix had prior acquaintance with the present bail petitioner and other coaccused. As per statement of one of the prosecutrix, she had

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been frequently talking to present bail petitioner as well as other coaccused Pyeeush @ Bhupinder Kumar. Interestingly, if the statements of both the prosecutrix made under Section 164 Cr.P.C are read in its entirety, it clearly suggest that both the prosecutrix had come with an intention to stay with accused because they both had also brought their casual clothes to be worn by them after they reach. As per statements of the victims/prosecutrix they changed their clothes after reaching the spot of occurrence. Medical evidence adduced on record, nowhere suggests sign of violence, if any, on the person of victims/prosecutrix. It also emerge from the statements of both the prosecutrix that bail petitioner and coaccused had not fled away leaving behind their car, rather they had gone to fetch the fuel. There is no evidence, worth the name, that victims/prosecutrix made any effort to raise hue and cry, rather they had dinner with the coaccused. Though, both the prosecutrix were minor at the time of commission of offence, but if their conduct is seen, which duly reflects from their statements give to JMIC under Section 164 Cr.P.C, it cannot be said that they were not capable of understanding the

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consequences of their being in the company of the bail petitioner and other coaccused.

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Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but having perused the aforesaid glaring aspects of the matter, this Court sees no reason to keep the bail petitioner behind the bars for an indefinite period, especially, when he has already suffered for more than 5 ½ months.

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Hon’ble Apex Court as well as this Court in

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catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence.

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Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar

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Pradesh & Anr .,decided on 6.2.2018, has categorically held

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that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:

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2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home

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(whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

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3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

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4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a firsttime offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an

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extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons

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The Hon’ble Apex Court in Sanjay Chandra

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versus Central Bureau of Investigation ( 2012)1 Supreme Court Cases 49; held as under:

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“ The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending

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trial to secure their attendance at the trial but in

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such cases, “necessity” is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

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Needless to say object of the bail is to secure the

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attendance of the accused in the trial and the proper test to be

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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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations,

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nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the

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accused, circumstances which are peculiar to the accused involved in that crime.

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The Hon’ble Apex Court in Prasanta Kumar

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Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC

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496, has laid down the following principles to be kept in mind,

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while deciding petition for bail:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.

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Consequently, in view of the above, present bail

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petition is allowed. Petitioner is ordered to be enlarged on bail

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subject to his furnishing personal bond in the sum of Rs.

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2,00,000/ (Rs. two lakh) with two sureties in the like amount

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to the satisfaction of the learned trial Court, with following

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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;

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b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

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c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and

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