Rajinder Kumar Vs State of Hp

For the Petitioner : Mr. N.S. Chandel, Sr. Advocate, with M/s Vinod Kumar Gupta and Kshitij, Advocates. : For the Respondent Mr. Prashant Sen, Deputy Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of an offence punishable under Section 376 of IPC registered vide FIR No.36 of 2024 dated 26.03.2024 at Police Station Kangra, H.P.

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As per the prosecution, the victim made a complaint

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to the police that she was a student of the petitioner. The

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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petitioner harassed her and threatened to get her fellowship stopped. He took her to a room, where he raped her. The police registered the FIR and arrested the petitioner. The petitioner is innocent and he was falsely implicated. The petitioner is a permanent resident of District Solan. He belongs to a respectable family. He is the sole bread-earning member of the family. His detention in judicial custody is not justified. The investigation is complete and nothing is to be recovered from the petitioner. He would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the victim made a complaint stating that she was enrolled for a PhD. The petitioner was her supervisor. He did not provide any topic to the victim. He made a complaint to the victim’s house that she was wandering with the boys. The petitioner gave her some topics for research and also told her that some software would be required to carry out the research. The victim demanded the software but only one software was provided to her. The petitioner threatened to stop the victim’s fellowship. The petitioner called her to a restaurant to discuss the topic. He booked a room and told her that the topic would be

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discussed in the room. When the victim accompanied the petitioner to the room, he raped her. The victim made a complaint to the police on the next day. The police registered the FIR and seized the samples. The call details record was also taken in possession which shows that the petitioner and the victim were talking to each other. Their tower location was found to be the same on the date of the incident from 7:44 pm to 10:50 pm. Human semen was detected in the vaginal swab, vaginal slide, urethral swab, vulval swab, underwear, trouser of the victim and bed sheet. The DNA profile obtained from vaginal swabs, urethral swabs and vulval swabs matched with the DNA profile obtained from the blood sample of the victim. The DNA on the trousers and underwear of the victim and the bed sheet of the room matched the DNA profile of the petitioner. As per the report of the Medical Officer, the petitioner was capable of performing sexual intercourse and the victim was subjected to vaginal intercourse. The charge sheet was prepared and presented before the Court.

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I have heard Mr. N.S. Chandel learned Senior Counsel assisted by Mr Vinod Kumar Gupta and Mr Kshitij Thakur,

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learned counsel for the petitioner and Mr Prashant Sen, learned Deputy Advocate General, for the respondent/State.

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Mr. N.S. Chandel, learned Senior Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The circumstances on the record show the consent of the victim. The victim was a grown-up woman, who voluntarily accompanied the petitioner to the room. She did not raise any hue and cry and did not report the matter immediately after the incident. She waited for one day and thereafter made the report. The petitioner may have been morally guilty but moral guilt and legal guilt are entirely different. The investigation is complete and no useful purpose would be served by detaining the petitioner in judicial custody. He would abide by all the terms and conditions, which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State submitted that the petitioner is the supervisor of the victim. He harassed the victim by not providing the topic to her and thereafter, took advantage of his

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position. He took the victim to the room, where he raped her.

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The offence is heinous and the petitioner should not be released on bail.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: -

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12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be 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;

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(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 the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(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

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always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity 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.

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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 have been explained in the following words:

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“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 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:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(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] .)”

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A similar view was taken in State of Haryana vs

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Dharamraj 2023 SCC Online 1085, wherein it was observed:

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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:

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‘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 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:

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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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The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The report of the DNA analysis shows the presence of the DNA of the petitioner in the bed sheet and the lower of the victim. The presence of the semen stains containing the DNA of the petitioner corroborates the victim’s version that the petitioner had subjected her to sexual intercourse.

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The victim stated that she had not consented and she was raped. It was laid down by the Hon’ble Supreme Court in Naim Ahamed vs. State (NCT of Delhi), 2023 SCC OnLine SC 89 that Section 114A of the Indian Evidence Act provides that when the victim states in a case of rape that she had not consented, the Court has to presume that there was no consent. It was observed:-

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“10. It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and

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considering the rising graph of the commission of the social crime - ‘Rape’, the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act. As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”

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It was laid down by the Hon’ble Supreme Court in

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Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615 , that in view of Section 114-A when the victim says that she had not consented, the Court has to presume the absence of the consent. It was observed:-

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“15. In this connection, reference may be made to the amendment made in the Evidence Act. Section 114-A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114-A reads as under:

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"114-A. Presumption as to the absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

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If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her."

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This judgment was followed in Anurag Soni Vs State of Chhattisgarh, 2019 (13) SCC 1. Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the Court cannot infer consent, when the victim stated that she had not consented to the sexual intercourse.

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Hence, the plea that the victim had consented cannot be accepted prima facie, at this stage.

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The petitioner was the Supervisor of the victim. He took advantage of his position. He initially harassed the victim, threatened to stop her fellowship and thereafter took her to a room, where he raped her. The circumstances show that the victim had reposed confidence in the petitioner and the petitioner abused that confidence. Hence, there is a force in the submission of Mr. Prashant Sen, learned Deputy Advocate

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General for the respondent/State that the nature of the offence is heinous and the petitioner is not entitled to the concession of bail. The petitioner being the victim’s supervisor is in a position to influence her which would affect the fair trial.

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Consequently, the present petition fails and the same is dismissed.

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The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.

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11^th September, 2024 (saurav pathania )

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( Rakesh Kainthla) Judge

Rajinder Kumar v. State of Hp

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Rajinder Kumar v. State of Hp

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