Himachal Pradesh High Court
Date Of Decision: February 4 vs State Of Himachal Pradesh on 4 February, 2021
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.117 of 2021
Reserved on: January 22, 2021.
.
Date of Decision: February 4, 2021.
Akshay
...Petitioner.
Versus
State of Himachal Pradesh
...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO
For the petitioner: Mr. V.S. Chauhan, Senior Advocate with Mr. Ajay Singh
Kashyap, Advocate.
For the respondent: Mr. Narender Guleria & Mr. Vikas Rathore, Additional
Advocate Generals, Mr. Bhupinder Thakur, Mr. Gaurav
Sharma and Ms. Divya Sood, Deputy Advocate Generals,
for the State.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
141 of 24.7.2016 Manali, District Kullu, H.P. 376, 376D, 395 and
2016 506 of the IPC
Anoop Chitkara, Judge.
For taking advantage of the ignorance of a foreigner lady about the difference
between a taxi and a private vehicle, who boarded the vehicle of the accused
thinking that it is a taxi and would drop her at bus-stand and they instead of
dropping, committed rape upon her and now one of the accused-petitioner,
Whether reporters of Local Papers may be allowed to see the judgment?
incarcerating upon his arrest has come up before this Court under Section 439 CrPC,
seeking regular bail.
.
2. Earlier, the petitioner had filed bail petitions under Section 439 CrPC before
the concerned Sessions Court on number of occasions, but the same were dismissed
by the learned Sessions/Additional Sessions Judge concerned. Thereafter, the
petitioner also filed petitions before this Court, which were registered as Cr.MP(M)
No.150 of 2019, Cr.MP(M) No.1311 of 2019 and Cr.MP(M) No.1041 of 2020, but
the same were subsequently withdrawn by the learned counsel.
3. The bail petition is silent about criminal history, however, Mr. V.S. Chauhan,
learned Senior Advocate assited by Mr. Ajay Singh Kashyap, learend counsel for the
bail petitioner states on instructions that the petitioner has no criminal past relating to
the offences prescribing sentence of seven years and more, or when on conviction,
the sentence imposed was more than three years.
4. Based upon the statement of a female, who is citizen of Israel, alleging rape by
the persons whose car she had sat believing it to be a taxi, the police registered the
FIR, mentioned above. Thereafter, the police arrested the accused and lodged the
prosecution. The Sessions Court framed charges and put them to trial. Now,
statement of the prosecutrix stands recorded.
5. Ld. Counsel for the petitioner contends that the statement of the victim stands
recorded and as such no purpose would be served by keeping the accused-petitioner
in jail. He further contents that further incarceration before the proof of guilt would
cause grave injustice to the petitioner and his family.
6. On the contrary, Ms. Divya Sood, learned Deputy Advocate General contends
that the offence is heinous, accused is a risk to law-abiding people, and bail is likely
to send a wrong message to the society.
REASONING:
7. The statement of the victim stands recorded as PW-6. She is a citizen of Israel
.
and had come to India to travel various places, including Kullu, Manali as well as
Kaja. On the dreadful day, on 24.7.2016, in early morning she left the hotel room to
go to the bus-stand to find a commutation to Kaja. After reaching the vehicular road,
she being unaware of the local taxi system, kept on waiting for a taxi. In the
meanwhile, one car came and she signalled it to stop thinking it that it was a taxi.
There were other people also in the said car. Thinking them to be the passengers, she
asked the driver to drop her to the bus-stand, on which he stopped the car and she sat
in the vehicle. Tne accused talked in the local dielect. After sometime, the driver
drove the car fast. The victim asked them to let her alight, however, they refused.
After taking the car to a secluded place, they stopped it on the roadside and started
fondling her. To pacify them, she told one of such person that he appears to be a
good person, upon which he replied that he is not a good person, but a devil.
Subsequently, they lowered her pants and it was clear to her that they would rape her.
Finding herself to be in a highly vulnerable position and realising that there is no
escape from coitus, she told them to use condom to save her from any sexually
transmitted disease or possibility of pregnancy. However, few of them did not even
use it while commiting rape upon her. In the Court, she identified the accused,
including the present bail petitioner.
8. During her cross-examiantion conducted on behalf of the accused, learned
counsel gave a suggestion to the victim that she was a consenting party and that is
why she asked to use condom. In response to this suggestion, the victim explained
that she was not a consenting party and she had asked the accused to use condom
because she was afraid of pregnancy and transmission of sexual disease. Thus, the
victim denied of having consented to coitus. Even otherwise, it is impossible that a
.
young girl who is a foreign citizen would indulge in coitus with as many as 5-6
persons. On the other hand, it is not the case of the accused that she did it for any
other consideration. The statement of the victim also suggests that the accused were
unknown to her. Therefore, there is no question of her consenting with the strangers.
Resultantly, the petitioner is not entitled to bail.
9. Counsel for the petitioner has also made several other arguments. Still, given
that this Court is not inclined to grant bail, on the reasons mentioned above,
discussion of the same will be an exercise in futility. Any detailed analysis of the
evidence may prejudice the case of the prosecution or the accused.
10. Given above, in the facts and circumstances peculiar to this case, at this stage,
the petitioner fails to make out a case for bail. The petition is dismissed.
11. Any observation made hereinabove is neither an expression of opinion on the
merits of the case, nor shall the trial Court advert to these comments.
The petition is dismissed.
Anoop Chitkara,
Vacation Judge.
February 4, 2021 (KS).
