Himachal Pradesh High Court

Bhagat Ram Son Of Sh. Sant Ram vs State Of Himachal Pradesh on 13 August, 2021

Bench: Vivek Singh Thakur

                                    1


                                                   ✓
                                  REPORTABLE/NON-REPORTABLE
          IN THE HIGH COURT OF HIMACHAL PRADESH AT
                           SHIMLA




                                                           .
                 ON THE 13th DAY OF AUGUST, 2021





                                BEFORE
           HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





          CRIMINAL MISC. PETITION (MAIN) NO.979 OF 2021
    Between:-





    YOG RAJ SON OF SH. NAROTAM RAM,
    RESIDENT OF VILLAGE PANYALI, POST
    OFFICE BARSWAN, TEHSIL BALH,
    DISTRICT MANDI, H.P. AGED ABOUT
    37 YEARS, THROUGH HIS UNCLE

    BHAGAT RAM SON OF SH. SANT RAM,
    RESIDENT OF VILLAGE BURAHALI,

    POST OFFICE DASEHRA, TEHSIL BALH,
    DISTRICT MANDI, H.P.
                                                             .....PETITIONER

    (BY SH.DEVENDER K. SHARMA, ADVOCATE)



    AND




    STATE OF HIMACHAL PRADESH
                                                          .....RESPONDENT





    (BY MR.DINESH THAKUR, ADDITIONAL ADVOCATE GENERAL)





                This petition coming on for orders this day, the Court
    passed the following:
                            JUDGMENT

Present petition has been filed invoking provisions of

Section 439 Code of Criminal Procedure (in short 'Cr.P.C.')

seeking enlargement of the petitioner on bail in case FIR No.16 of

2021, dated 13.02.2021, registered in Police Station Sarkaghat

District Mandi, H.P., under Sections 420, 406, 376, 506 read with

Section 34 and Section 120B read with Section 201 of the Indian

Penal Code (in short 'IPC').

2. Status report stands filed, wherein it is stated that

victim had approached the police on 13.02.2021 with a

complaint, alleging therein that co-accused Lata Devi was known

to her and she influenced her with assurance that she would be

arranging a girl for marriage of her brother Tej Singh and one

day, she had informed that engagement of her brother had been

finalized with a girl namely Kirna and in lieu thereof Lata Devi

had received a sum of `2,50,000/- from her which was paid by

her after collecting it from her brother, sister and mother, and

this payment was made by her by withdrawing money from her

bank accounts maintained in Cooperative Bank, Bhadrawad and

State Bank of India, Sarkaghat. It is further alleged in the

complaint that co-accused Lata Devi, during this period, had also

extorted money by forcing her to sell golden ornaments like,

Teek, Ear rings, Mangalsutra, Finger rings, Nath etc. According

to complaint, petitioner Yog Raj, a private bus driver in a bus

plying between Sundernagar and Sarkaghat, and God brother of

co-accused Lata Devi, had retained money with him by saying

that victim would be sent to foreign and when both accused

demanded more money, then victim had sold old ornaments of

her mother to Verma, Chandrani and Jyoti Abhushan Bhandar

and some of those ornaments were retained by the petitioner

with him. Further that in the month of March 2020 because of

Lockdown victim could not remain in direct contact with accused

persons but remained in touch through mobile phone calls only.

However, lateron accused Lata Devi refused to arrange marriage

of brother of victim and when victim demanded her money and

ornaments, then they started threatening her and Lata Devi had

advised victim to meet driver of Peeyush bus i.e. petitioner by

assuring that he would be doing something.

3. It is stated in the complaint that on 04.02.2021

petitioner had taken her forcibly in the bus from Rakhota to

Sundernagar and at Sundernagar he had violated her person in

some Hotel throughout the night and thereafter had threatened

her to kill on disclosure of the incident to anyone. According to

complaint, victim was in a shock for loss of money and

ornaments and was not able to take a decision and on

11.02.2021, petitioner had again taken her to Sundernagar in the

bus and had again committed rape with her in a Hotel and had

threatened to kill her by throwing in the lake by saying that apart

from loss of ornaments and money she would also be losing her

life. On 12.02.2021 complainant had disclosed entire episode to

her married sister Kanta Devi and thereafter approached the

police alongwith her sister on 13.02.2021. On the basis of this

complaint, FIR was registered and investigation was started.

4. During investigation, statement of victim was

recorded and videographed and on 15.02.2021 her statement

was also recorded under Section 164 Cr.P.C., wherein victim had

reiterated extortion of money and violation of her person by the

petitioner on 04.02.2021 and 11.02.2021 in Sundernagar in

different hotels. Whereupon, petitioner was apprehended and

brought to Police Station Sarkaghat and during interrogation

victim had identified the petitioner as accused and had stated

that petitioner in conspiracy with accused Lata Devi had sold the

ornaments, but had denied violation of her person by the

petitioner. But on 16.02.2021 victim had again come to the

Police Station alongwith her sister and had reiterated violation of

her person by the petitioner on 04.02.2021 and 11.02.2021 with

further assertion that she would identify the Hotels. Thereafter,

Investigating Officer visited Sundernagar alongwith victim and

victim identified the Hotel New Ashiana, situated adjacent to Bus

Stand as a Hotel where she was violated by the petitioner in

room No.101 and she had also identified the bed sheet as the

same bed sheet which was there on the day of incident. On

checking and verification of visitors' register, it was found that

there was no entry on the alleged date of any visitor staying in

room No.101 and on inquiring about CCTV footage, owner of the

Hotel had disclosed that CCTV camera was not in order since

04.02.2021.

5. It is further stated in the status report that another

Hotel identified by the victim was Hotel Surya and victim had

claimed that she was violated by the petitioner in room No.110

of the said Hotel. On verification of entries in visitors' register, it

was found that there was no entry of guest/visitor against room

No.110 for the alleged date of incident nor there was any footage

in the CCTV camera. Hotel Manager had disclosed that on

11.02.2021 CCTV camera of the Hotel was not in order.

6. It is stated in the status report that during

interrogation petitioner had admitted intimacy with victim with

further assertion that she had been making telephonic calls to

him since long and was interested to marry him, but petitioner

had expressed his inability to marry her being already married.

He has also admitted that on 04.02.2021 and 11.02.2021 victim

had travelled in his bus up to Sundernagar, but he had not

stayed with her in the Hotel, but had gone to home in his native

Village.

7. Petitioner was arrested on 16.02.2021 and since

then, after remaining in police custody, he is in judicial custody.

8. Co-accused Lata Devi was arrested on 20.02.2021

and she remained in police custody for two days and during

search of her house neither money nor ornaments were

recovered. She was enlarged on bail by learned Sessions Judge,

Mandi.

9. As per chemical analysis report received from

Regional Forensic Science Laboratory (RFSL), semen was found

on the bed sheets taken in possession by the police after

identification thereof by the victim from two Hotels and these

bed sheets were sent for DNA Profiling to State Forensic Science

Laboratory (SFSL) Junga. As per report received from the SFSL,

Junga, DNA Profile pertaining to male individual obtained from

the bed sheets did not match with DNA Profile obtained from the

blood sample of petitioner Yog Raj. On the basis of reports,

Medical Officer Sarkaghat has opined that possibility of forceful

intercourse cannot be ruled out.

10. As per status report, challan has been presented in

the Court of learned Additional Chief Judicial Magistrate,

Sarkaghat on 08.05.2021 and supplementary challan after

receipt of SFSL report is being prepared and likely to be

presented in the Court.

11. Learned Additional Advocate General has submitted

that petitioner has not only cheated victim to extort money and

ornaments from her, but has also committed heinous crime by

violating her person forcibly and, therefore, is not entitled for

bail. Whereas, learned counsel for the petitioner has submitted

that victim, on 13.02.2021 in her complaint, had alleged violation

of her person by petitioner, but had denied the same during

investigation on 15.02.2021, however, had reiterated the said

allegation on 16.02.2021 when she visited the Police Station

alongwith her sister and further that from the material on record,

including DNA Profiling report, plea of petitioner is substantiated

that he had not stayed in the Hotels on 04.02.2021 and

11.02.2021 as alleged by the victim. Learned Additional

Advocate General has submitted that DNA Profiling is of no

relevance in present case as bed sheets were taken in

possession not immediately after the incident, but few days

thereafter and there is always possibility of someone else staying

in those rooms after the commission of offence by the petitioner.

12. Without commenting on merits of the evidence

collected by the Investigating Agency and without evaluating and

assessing rival contentions of parties and material placed before

me, but considering all factors and principles relevant to be

considered at the time of deciding bail application and also

taking into consideration facts and circumstances of the case, I

am of the considered opinion that, at this stage, petitioner is

entitled for bail.

13. Accordingly, petition is allowed and petitioner is

ordered to be released on bail in case FIR No.16 of 2021, dated

13.02.2021, registered in Police Station Sarkaghat, District

Mandi, H.P., on his furnishing personal bond in the sum of

`1,00,000/- with one surety in the like amount, to the satisfaction

of the trial Court, within two weeks from today, upon such further

conditions as may be deemed fit and proper by the trial Court,

including the conditions enumerated hereinafter, so as to ensure

the presence of petitioner/accused at the time of trial and also

subject to following conditions:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or

.

suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be

cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of

India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in

future.

12. It will be open to the prosecution to apply for

imposing and/or to the trial Court to impose any other condition

on the petitioner as deemed necessary in the facts and

circumstances of the case and in the interest of justice and

thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem

necessary in the interest of justice.

13. In case the petitioner violates any condition imposed

upon him, his bail shall be liable to be cancelled. In such

eventuality, prosecution may approach the competent Court of

law for cancellation of bail, in accordance with law.

14. Trial Court is directed to comply with the directions