Dismissed

Tahir Khan v. State of Hp

Himachal Pradesh HC4 Mar 2024CRMPM/32/2024

Case brief

AI extract

What is this about?

Single Judge bench of the High Court of Himachal Pradesh refused bail to the petitioner accused of rape, severe injury, mushroom cultivation, and smuggling under various sections of the NDPS Act and IPC. The court relied on judicial precedents and principles of law to conclude that the evidence was sufficient to establish guilt and that the petitioner posed a risk of absconding and tampering with

What did the court decide?

Bail application dismissed; accused to remain in custody pending trial.

Tahir Khan Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2024)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

Cr. MP (M) No. 32 of 2024 Reserved on: 27.02.2024 Date of Decision: 04.03.2024

¶3

Tahir Khan ...Petitioner

¶4

Versus

¶5

State of Himachal Pradesh ...Respondent

¶6

Coram

¶7

Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

¶8

For the Petitioner : M/s Jagmohan Chandel and Vinod Chauhan, Advocates. For the Respondent : Ms. Avni Kochhar, Deputy Advocate General.

¶9

Rakesh Kainthla, Judge:

¶10

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 376 and 506 of the Indian Penal Code (in short ‘IPC’) and Section 67 of the Information Technology Act (in short ‘IT Act’) registered vide FIR No.173 of 2023 dated 13.11.2023 at Police

¶11

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

¶12

¶13

Station Majra, District Sirmaur, H.P. The petitioner is innocent and he was falsely implicated. The petitioner has been in a close relationship with the prosecutrix for a long time but her relatives were not happy with this relationship. The petitioner did not circulate the videos/photographs of the prosecutrix. The report of the FSL is awaited. The petitioner is a permanent resident of Paonta Sahib and there is no chance of his absconding. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.

¶14

The police filed a status report asserting that the victim was alone in her home. The accused entered her house and raped her. He threatened to kill her. The accused/petitioner prepared a video of the incident and compelled the prosecutrix to enter into a physical relationship with him. The brother-inlaw of the prosecutrix showed the photographs to the prosecutrix and her husband. The police registered the FIR and conducted the investigation. The police arrested the accused/petitioner. The police seized the mobile phone, which was produced by the mother of the petitioner. It was found that the petitioner had sent the photographs of the prosecutrix through Whatsapp to various persons. The petitioner was

¶15

¶16

medically examined and the result of the analysis has been received. Hence, the status report.

¶17

I have heard Mr. Jagmohan Chandel and Mr. Vinod Chauhan, learned counsels for the petitioner and Ms Avni Kochhar, learned Deputy Advocate General, for the respondent/State.

¶18

Mr. Jagmohan Chandel, learned counsel for the petitioner submitted that the report of the analysis does not show the presence of any semen, which falsifies the version of the prosecutrix regarding the rape. The copies of the photographs have been annexed to the challan which show that the photographs are not obscene and no offence for the commission of an offence punishable under Section 67 of the Information Technology Act has been made out in the present case. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

¶19

Ms. Avni Kochhar, learned Deputy Advocate General

¶20

for the respondent/State submitted that the prosecutrix had specifically stated that she was raped. Her version that the photographs were taken is duly corroborated by the

¶21

¶22

photographs found in the mobile phone. There is sufficient material to connect the petitioner with the commission of the crime. Keeping in view the nature of the offence, the present petition be dismissed.

¶23

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

¶24

The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak , 2023 SCC OnLine SC 1059, wherein it was observed as under:-

¶25

“ 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;

¶26

(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;

¶27

(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.

¶28

¶29

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

¶30

(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.

¶31

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 has been explained in the following words:

¶32

“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:

¶33

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

¶34

¶35

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

¶36

( 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 ].)”

¶37

A similar view was taken in State of Haryana vs

¶38

Dharamraj 2023 SCC Online 1085, wherein it was observed:

¶39

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:

¶40

‘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:

¶41

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

¶42

(ii) nature and gravity of the accusation;

¶43

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

¶44

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

¶45

¶46

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

¶47

(vi) likelihood of the offence being repeated;

¶48

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

¶49

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

¶50

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

¶51

The victim specifically stated that the accused entered her house and raped her. She stated that the accused took her photographs, prepared her video and forced her to enter into sexual relations. It was submitted that the report of the analysis does not show the presence of semen; therefore, the version of the victim/prosecutrix is falsified. This submission is not acceptable. It was laid down by Hon’ble Supreme Court in

¶52

Phool Singh Vs State of Madhya Pradesh 2022 (2) SCC 74 , that ordinarily testimony of a rape witness has to be accepted as correct. It was held in State of M.P vs. Pritam AIR 2018 SC 4242 , that the testimony of the victim cannot be doubted because of the absence of the injuries. Similarly, it was held in Santosh Vs State, 2010 (5) SCC 445 , that absence of injury on a woman is not a ground to reverse the conviction of the rape. It was held in

¶53

¶54

Radhu vs State 2007 (12) SCC 67 , that the absence of any injury does not falsify the version of the prosecution regarding the rape nor does it suggest consent. Therefore, no advantage can be derived from the absence of the injuries.

¶55

It was submitted that the long silence of the victim shows her consent. This submission is not acceptable. There is a presumption under Section 114-A of the Indian Evidence Act regarding the absence of consent when the victim states that she had not consented. 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: -

¶56

“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 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

¶57

¶58

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.”

¶59

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

¶60

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: -

¶61

“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:

¶62

"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."

¶63

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

¶64

¶65

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."

¶66

This judgment was followed in Anurag Soni Vs State of

¶67

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.

¶68

It was submitted that the copies of the photographs annexed to the charge sheet do not show that these are obscene. The status report and the copy of the charge sheet show that the mobile phone was sent to FSL, Junga and the result is awaited. These photographs relied upon by the petitioner show that there were 102 photos and it is not known whether all the photographs have been placed on record or not. Therefore, it is premature to say whether an offence punishable under Section 67 of the Information Technology Act is made out or not.

¶69

It was submitted that there is an age difference between the victim and the petitioner. The victim is married having minor children. The fact that she had revealed the

¶70

¶71

incident after the photographs were shown by her brother-inlaw shows her consent. This submission cannot be accepted. As already stated, there is a presumption under Section 114A of the Indian Evidence Act regarding the absence of consent, when the victim says that she had not consented. Secondly, the victim had specifically stated that the accused/petitioner had threatened her with the photographs. Therefore, she could not have revealed the incident for fear of making the photographs viral. It is only when the photographs were shown to her and her husband, then she could have revealed the incident to the Police. Therefore, the long silence of the petitioner cannot show her consent and no advantage can be derived by the petitioner from the same.

¶72

The petitioner raped his neighbour. He prepared her video and took her photographs. He threatened to make them viral and further compelled her to enter into sexual relations with him. Keeping in view the proximity of the petitioner and the victim, releasing the petitioner on bail will influence the fair trial adversely. Thus, the petitioner cannot be released on bail.

¶73

¶74