Stepfather accused under IPC Sections 376/34 and Section 6 POCSO sought regular bail; victim turned hostile and medical evidence did not corroborate forcible intercourse. Court granted bail noting over eleven months' incarceration, presumption of innocence, and imposed conditions including personal bond with sureties.
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2024:HHC:6939
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1628 of 2024 Date of Decision:13.08.2024
----------------------------------------------------------------------------------------Jeewan Kumar ...Petitioner Versus State of Himachal Pradesh …Respondent ----------------------------------------------------------------------------------------Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1
---------------------------------------------------------------------------------------For the petitioner : Mr. Parmod Singh Thakur, Advocate. For the respondent : Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General. ASI Trilochan Singh, PS Gagret, HP present in person. ----------------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral)
Bail petitioner namely Jeewan Kumar, who is behind bars since 29.09.2023, has approached this court in the instant proceedings filed under Section 483 of Bharatiya Nagrik Suraksha Sanhita (hereinafter ‘ BNSS ’) for grant of regular bail in case FIR No.132 of 2023, dated 20.09.2023, under Sections 376 & 34 of IPC and Section 6 of POCSO Act, registered at Police Station Gagret, District Una, H.P.
1 Whether reporters of the local papers may be allowed to see the judgment?
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2. Respondent- State has filed status report and ASI
Trilochan Singh has come present with the record. Record perused and returned.
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of challan in the competent Court of law, Mr. B.C.Verma, learned Additional Advocate General, states that though nothing remains to be recovered from the bail-petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, his prayer for grant of regular bail deserves outright rejection. While making this Court peruse statement of victim-prosecutrix recorded under Section 164 Cr.P.C., Mr. Verma, vehemently argued that bail-petitioner, who happens to be stepfather of the victim-prosecutrix, had been sexually assaulting her for the last one month. He states that since bail-petitioner is accused of having committed heinous crime, coupled with the fact that he resides with the mother of the victimprosecutrix, it may not be in the interest of justice to enlarge him on bail because in that event he may not only flee from justice, but may again indulge in these activities & again cause harm to the victim-prosecutrix, who is otherwise unable to protect herself being minor and as such, his prayer for grant of bail may be rejected.
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one month. Though allegedly victim-prosecutrix had brought aforesaid factum, if any, to the knowledge of her mother and grand mother, but since no action was taken, she was compelled to lodge a complaint with the School Principal, where victim-prosecutrix was studying. No doubt, bail-petitioner is the stepfather of the victimprosecutrix, but this court cannot lose sight of the fact that lady with whom victim-prosecutrix resides in her house, is her real mother and as such, it is highly difficult to accept that complaint, if any, brought to her notice with regard to sexual harassment was not taken note by the mother of the victim-prosecutrix. Moreover, this Court finds that Principal after having registered complaint of the victim-prosecutrix, though summoned bail-petitioner before Sexual Harassment Committee, but at no point of time, made an attempt to associate mother and grand mother of the victimprosecutrix, who could be otherwise best persons to testify with regard to correctness of allegation made by the victim-prosecutrix. 6. Leaving everything aside, this Court finds that victimprosecutrix in her statement recorded/given under Section 164 Cr.P.C. as well as to the Principal school concerned alleged that on last night, she was subjected to forcible sexual intercourse, but such version of her is not corroborated by the medical evidence adduced on record. Next day of the alleged incident, victim-
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prosecutrix was taken to the doctor concerned for medical examination, who after having medically examined her, found no internal or external injury on her body, especially on her private parts. If the medical evidence adduced on record is perused in its entirety, it completely falsify the case of the prosecution.
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prosecution by leading cogent and convincing evidence, this court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial. No doubt, petitioner in the case at hand has also been booked under the relevant provisions of POCSO Act, but such fact may not deter this court from considering the prayer made on behalf of petitioner for grant of regular bail, especially for the reasons as have been recorded in the earlier part of the judgment. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice can be best met by putting the bail petitioner to stringent conditions. Bailpetitioner, who is otherwise a first offender, being local resident of the area shall always remain available for investigation of the trial as and when called by the Investigating Agency.
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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:
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 (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.
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.
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
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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 first-time 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 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 Re-Inhuman Conditions in 1382 Prisons
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
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amount of bail. The object of bail is neither punitive nor preventative.
13. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, the petition is allowed and the
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petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 2,00,000/with two sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
(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, before the investigating agency.
14. 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.
15. 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 application alone. The petition stands accordingly disposed of.
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16. The bail petitioner is permitted to produce the copy of
the 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
August 13, 2024 ( sunil )
1 issue framed by the court
Whether a stepfather accused under Sections 376/34 IPC and Section 6 POCSO Act deserves regular bail after the victim turned hostile and medical evidence did not corroborate the allegation?
Colour shows how this judgement treated each authority
Dataram Singh vs. State of Uttar Pradesh & Anr.Relied on¶9
Dataram Singh vs. State of Uttar Pradesh & Anr., Criminal Appeal No. 227/2018, decided on 6.2.2018
Sanjay Chandra vs Central Bureau of InvestigationRelied on¶10
Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49
Manoranjana Sinh alias Gupta vs CBIRelied on¶11
Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 · Who else cites this
Prasanta Kumar Sarkar vs Ashis Chatterjee and anotherRelied on¶12
Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496 · Who else cites this
5 provisions across 5 enactments
Jeewan Kumar
State of Himachal Pradesh
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
