Bhagat Ram vs State Of Himachal Pradesh
2021 Latest Caselaw 940 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.71 of 2021 Reserved on:January 19, 2021.

.

Date of Decision:February 4, 2021.

Bhagat Ram

...Petitioner.

Versus

State of Himachal Pradesh

...Respondent.

Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1 Yes

For the petitioner: Mr. Manoj Pathak, Advocate.

For the respondent: Mr. Ajay Vaidya, Senior Additional Advocate General with Mr. Bhupinder Thakur & Mr. Gaurav Sharma, Deputy

Advocate General and Mr. Rajat Chauhan, Law Officer, for the State.

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        FIR No. Dated          Police Station                      Sections
        8     of 10.2.2018     Nerwa, District Shimla, H.P.        376(2)(L), 452, 201





        2018                                                       IPC

    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest, for allegedly committing rape

upon a deaf and dumb girl, has come up before this Court under Section 439 CrPC,

seeking bail.

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

2. Earlier, the petitioner had filed several petitions under Section 439 CrPC before

the concerned Sessions Court, but the same were dismissed. After that, the petitioner

.

filed bail petition before this Court, which was registered as Cr.MP(M) No.1195 of

2020, which was subsequently withdrawn by learned counsel.

3. The bail petition is silent about criminal history, however, Mr. Manoj Pathak,

learned 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. Briefly, the allegations against the petitioner are that on 10.2.2018, the police

officials received an information about rape of a deaf and dumb girl. On receiving

such information, the police officials reached her village. On further inquiry, they

were able to trace the brother of the victim and recorded his statement under Section

154 Cr.PC, which led to the registration of the FIR, mentioned above.

5. The brother of the victim informed the police that they are three brothers and

one sister, who is deaf and dumb. Yesterday, there was a wedding in their village. He

alongwith his father had gone to attend such wedding. His sister was alone at home.

At 1:00 O' clock in the night, when he returned home, he noticed that the door of the

home was opened. He heard some sound of coughing from inside the room where

his deaf and dumb sister sleeps. After that, he entered the room and when he

switched on the light, he noticed that Bhagat Ram was lying upon his sister and was

doing sexual intercourse with his sister. The moment Bhagat Ram noticed him, he

came out and then they had a scuffle, after which, he caught hold of the accused and

confined him in a room. Thereafter, he called the villagers, but in the meantime,

Bhagat Ram fled away after opening the window. After registration of the FIR, the

police took the victim for her medical examination in Civil Hospital, Nerwa. The

Doctor preserved her scientific evidence for DNA profiling. After that, the police

arrested the accused and also obtained his genetic material for DNA profiling.

Subsequently, the Investigator sent both genetic materials of victim and accused to

.

Forensic Science Laboratory, Junga for scientific analysis.

6. The Investigator also produced the victim before JMIC, Chopal for recording

her statement under Section 164 Cr.PC and subsequently the police also got her

psychiatric test at IGMC, Shimla. The Forensic Science Laboratory could not deduct

any semen on the clothes and pubic hairs of the victim, however, blood was deducted

on the vaginal slides of the victim, which was insufficient for further examination.

Thus, in the entirety, the Forensic Science Laboratory did not deduct any semen from

the evidence and the blood recovered was inconclusive for any findings.

7. Finally, the Doctor opined that there was nothing suggestive for recent sexual

assault. Subsequently, the police initiated prosecution and filed report under Section

173(2) Cr.PC and the trial is going on.

8. Mr. Manoj Pathak, learned counsel for the petitioner contents that further

incarceration before the proof of guilt would cause grave injustice to the petitioner

and his family. Learned counsel has read medical evidence from his file. Learned

Deputy Advocate General, submits that they have filed status report. Although,

report of the Doctor did not corroborate the version of the victim, still charges have

been framed against the accused-petitioner and the most important evidence would

be the statement of the victim recorded before JMIC under Section 164 Cr.PC as well

as psychiatric test report, which has not been placed before this Court by the

petitioner.

9. On the contrary, learned Deputy Advocate General contends that the accused is

likely to repeat the offence. He further 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:

10. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this

Court after considering the relevant judicial precedents observed that in reckoning

the number of cases as criminal history, the prosecutions resulting in acquittal or

discharge; or when Courts quashed the FIR; the prosecution stands withdrawn, or

Prosecution filed a closure report; cannot be included. The criminal history must be

of cases where the accused was convicted, including the suspended sentences and all

pending First Information Reports, wherein the bail petitioner stands arraigned as an

accused. While considering each bail petition of the accused with a criminal history,

it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. Although crime is to be

despised and not the criminal, yet for a recidivist, the contours of a playing field are

marshy, and graver the criminal history, slushier the puddles.

11. Although, the status report had reproduced the final oionion of the Doctor,

but Mr. Manoj Pathak, learned counsel for the petitoner did not file the copies of

173(2) report, MLC and statement of the victim under Sectiion 164 Cr.PC for perusal

of the Court. Withouth carefuly scrutiniging and reading such documents, how bail

can be given in such a heinious crime where charges were framed by the Sessions

Court.

12. Learned Counsel for the petitioner referred to certain statements and memos

from the police report, prepared under section 173(2) CrPC, copies of which the

accused had duly received in compliance to S. 207 CrPC. However, the documents

which the Ld. Counsel referred were neither filed with the petition, nor its copies

supplied to the Court and the State. Thus, the Court cannot base any finding on a

document in the Counsel's brief and not on Court's file.

.

13. 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.

14. 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 with liberty

to file a new bail application.

15. 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).