Regular bail applications by two men arrested for the rape of a 13-year-old girl. The court held the victim's statement was corroborated by forensic reports detecting human semen on the petitioners' clothes, no discrepancies were shown, and given the heinous nature of the offence bail was refused.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) Nos. 460 and 462 of 2024
Reserved on: 20.06.2024 Date of Decision: 2nd July, 2024
1. Cr.MP(M) No. 460 of 2024 Rohit
...Petitioner
State of Himachal Pradesh 2. Cr.MP(M) No. 462 of 2024 Rajesh Kumar
State of Himachal Pradesh
Versus ...Respondents ...Petitioner Versus ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?1 No. For the Petitioner(s): Mr Deepak Kaushal, Senior Advocate with Mr Abhishek Verma, Advocate in both the petitions
For the respondent(s)/State Mr. Ajeet Sharma, Deputy Advocate General in both petitions.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Mr Amit Sharma, Advocate, for the complainant-victim
Rakesh Kainthla, Judge
The petitioners have filed the present petitions for seeking regular bail. It has been asserted that the petitioners were arrested for the commission of offences punishable under Section 363, 376DA of the Indian Penal Code (IPC) and Sections 4, 6 of the Protection of Children from Sexual Offences Act, 2012 ((in short ‘POCSO Act’) vide F.I.R. No. 22 of 2024, dated 07.02.2024 registered at Police Station Poanta Sahib District Sirmour, H.P. The petitioners have been falsely implicated and there is no legal evidence against them. There are huge discrepancies in the complaint filed by the prosecutrix’s mother and the statement of the victim under Section 164 of Cr.P.c. The victim denied that the accused had done something wrong with her. The petitioners are innocent and law-abiding citizens. They do not have any criminal history. No useful purpose would be served by keeping them in judicial custody. Hence, the present petition.
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stating therein that the victim had gone to her friend’s house on 05.02.2024, however, she did not return during the night. The victim returned on 06.02.2024 at 8:00 a.m. She revealed on enquiry that when she was returning to her home, petitioner-Rohit asked her to board the vehicle. He told her that he would drop her but he took her to some other place. One person accompanied the petitioner and both of them raped her. The police registered the F.I.R. and conducted the investigation. The police seized the vehicle, which was identified by the victim. The police recovered one blanket and pillow. The police arrested the petitioner and coaccused. The petitioner’s clothes were seized by the police. As per the date of birth certificate, the victim was born on 12.09.2010. She was aged 13 years, 4 months and 26 days on the date of the incident. The mobile phone of the petitioner and the co-accused were seized. The clothes were preserved by the Medical Officer and these were sent to SFSL, Junga. As per the report of the analysis, human semen was detected on the underwear of the victim, undergarments of petitioners Rohit and Rajesh Kumar, the T-shirt of petitioner Rajesh Kumar, blanket recovered from the vehicle and the lower of the victim. The challan has been prepared and
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presented before the Court. Hence, it was prayed that the present petitions be dismissed.
5 Mr Ajeet Sharma, learned Deputy Advocate General submitted that the petitioners’ undergarments were found to be containing human semen, which corroborates the version of the
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victim regarding the commission of rape. No material was placed on record to show the discrepancies in the statements of the victim’s mother and the victim. The age of the victim is 13 years; therefore, the petitioners are not entitled to a concession of bail. Hence, he prayed that the present petitions be dismissed.
for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-
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;
(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;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should
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also weigh with the Court in the matter of grant of bail.
(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.
(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.
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:
“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:
( a ) The nature of accusation and the severity of punishment in case of
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conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(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] .)”
Dharamraj 2023 SCC Online 1085, wherein it was observed:
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:
‘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:
(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;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.’
report of the analysis stating that human semen was found in the clothes of the petitioners. It was submitted human semen is not connected to the petitioners because the report of the DNA analysis is still awaited and the police had fabricated the evidence. It is difficult to accept this submission, at this stage without any material to this effect. At this stage, the statement of the victim is duly corroborated by the report of the analysis and the same has to be accepted as correct for determining a prima facie case against the petitioners.
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recorded under Section 164 of Cr.P.C. However, no copy of the statement of the victim was filed to establish this fact. Hence, the submission that the petitioners are entitled to bail based on the discrepancies cannot be accepted. Since, there is nothing on record to show the discrepancies, hence, the judgment cited by the learned counsel for the petitioners does not apply to the present case.
confined to the disposal of the petitions and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge
02nd July, 2024 (ravinder)
1 issue framed by the court
Whether the petitioners accused of raping a 13-year-old girl under IPC Sections 363/376DA and POCSO Act Sections 4 and 6 were entitled to regular bail.
Colour shows how this judgement treated each authority
Ajay Kumar Vs. State of H.P.Distinguished¶10
Ajay Kumar Vs. State of H.P. along with connected matter, Cr.MP(M) No. 592 of 2022, decided on 19.04.2022
Bhagwan Singh v. Dilip KumarRelied on¶7
Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 · Who else cites this
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu YadavReferred¶7
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 · Who else cites this
Ram Govind Upadhyay v. Sudarshan SinghReferred¶7
Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] · Who else cites this
Puran v. RambilasReferred¶7
Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] · Who else cites this
State of Haryana vs DharamrajRelied on¶8
State of Haryana vs Dharamraj 2023 SCC Online 1085 · Who else cites this
Ram Govind Upadhyay v. Sudarshan SinghReferred¶8
Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 · Who else cites this
Kalyan Chandra Sarkar v. Rajesh RanjanReferred¶8
Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 · Who else cites this
Prasanta Kumar Sarkar v. Ashis ChatterjeeRelied on¶8
Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 · Who else cites this
3 provisions across 3 enactments
Rohit
Rajesh Kumar
State of Himachal Pradesh
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
