Himachal Pradesh High Court
Shivani Wife Of Shri Bhupesh vs And on 24 May, 2022
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
ON THE 24th DAY OF MAY, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) NOS. 2278 AND 2279 OF
2021
Between:-
1.CRMP(M) NO. 2278 OF 2021
SHIVANI WIFE OF SHRI BHUPESH
SINGH, RESIDENT OF VILLAGE
GHOLTI, PO SAROL, TEHSIL AND
DISTRICT CHAMBA HP
....PETITIONER
(BY MR. NIMISH GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
...RESPONDENT
(BY MR. HEMANT VAID, ADDITIONAL ADVOCATE GENERAL)
2. CRMP(M) NO. 2279 OF 2021
BHUPESH SINGH SON OF SHRI
DAULAT RAJ, RESIDENT OF VILL.
GHOLTI, PO SAROL, TEHSIL AND
DISTRICT CHAMBA HP ......PETITIONER
(BY MR. NIMISH GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH .....RESPONDENT
(BY MR. HEMANT VAID, ADDITIONAL ADVOCATE GENERAL)
Judgment reserved on:17th May, 2022
::: Downloaded on - 24/05/2022 20:07:12 :::CIS
2
Date of Decision: 24th May,2022
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the
.
following:
ORDER
Since both petitions arise out of the same FIR,
the same are consolidated and disposed of together in
order to avoid repetition and for the sake of convenience.
2 Petitioners have approached this Court,
invoking provisions of Section 438 of Code of Criminal
Procedure (in short 'Cr.PC'), seeking bail in case FIR No.
154 of 2021 dated 26.12.2021, registered under Sections
420, 506 and 376 of Indian Penal Code (in short "IPC") in
Police Station Tissa, District Chamba H.P.
3 Petitioner Bhupesh Singh is serving as
Constable in Police Department and petitioner Shivani is his
wife. Petitioners and complainant belong to Scheduled
Caste category.
4 Status reports stand filed. Record was also
made available.
5. Prosecution case, in brief, is that complainant
approached the Sub Divisional Officer, Tissa by filing a
written complaint dated 22.11.2021 complaining that
petitioners had grabbed her land by cheating and sexually
exploiting her and were also threatening to kill her. In the
complaint, it was stated that husband of complainant
expired four years ago in a suspicious circumstance
.
regarding which police conducted investigation and during
that process, petitioners came in contact of complainant,
who, on the pretext of helping her, came in her close
contact. Thereafter, petitioner Bhupesh assured
complainant to bear her expenses and to keep her children
in his house enabling them to study there and to keep her
as a wife and for that, he proposed to develop physical
relations with promise to visit her. After developing physical
relations, he used to visit her house late night and to leave
the house before morning in the dark. After some-time, he
expressed his reluctance to continue such meetings as it
would be objectionable for public for death of her husband
and thus he asked the complainant to transfer her land to
him and then he would be able to tell the public that the
land belonged to him as after transfer of land, he would
construct his house on the same. As per complaint, during
this period, both petitioners took her son Sanjeev Kumar to
their village and admitted him in a school where he studied
for about one year and in the intervening period, petitioner
Bhupesh continued to visit and exploit her sexually and
pressurizing to transfer the land. Believing petitioners, in
the year 2020, complainant transferred the land of her
share in favour of petitioner Shivani because Bhupesh had
.
told that he would not be able to purchase the land in his
own name being a Government employee because for that,
he had to seek permission from higher authorities, which
was a cumbersome exercise. It is further case of
complainant that when mutation was attested in favour of
Shivani, petitioners ousted the son of complainant from
their house along with School Leaving Certificate. On
inquiry, petitioners started threatening the complainant by
saying that they had purchased the land by paying
consideration and in case, she would raise voice, she would
be killed. According to the complainant, after transfer of
land from complainant, the same was further sold by
petitioners to another villager.
6 On the basis of aforesaid complaint, FIR was
registered and on 26.11.2021 complainant was taken to
Civil Hospital, Tissa for medical check-up but she refused to
undergo medical check-up. On 28.11.2021, statement of
victim was recorded under Section 164 Cr.PC before
learned Judicial Magistrate First Class, Tissa and, thereafter,
she expressed her desire to undergo medical check-up.
Whereupon, on same day, she was subjected to medical
check-up in Civil Hospital Tissa.
7 Petitioners, after getting anticipatory bail,
.
joined the investigation and claimed that they have
purchased the land from complainant by paying
consideration of Rs.4,50,000/-. It is further claimed that
Rs.85,000/- was paid to complainant in presence of Budhi
Prakash and Rs.40,000/- through Hari Singh, a labourer
working in their home, and by paying small installments
they paid Rs.3,75,000/- to complainant, but complainant
was not executing registered sale deed and, thereafter, on
payment of Rs.70,000/- in cash complainant executed the
sale deed in March, 2020 in the office of Sub Registrar Tissa
showing the consideration of land as Rs.1,50,000/-.
Petitioner Bhupesh has admitted the visiting of house of
complainant, but refused to have any physical relations
with her. According to petitioners, on 18.11.2021, the land
was sold by them to one Budhi Prakash son of Damar
Bahadur resident of village Bharada for consideration of
Rs.10,50,000/- by executing the sale deed and attestation
of mutation in his favour and due to that, complainant was
annoyed and levelled the false allegations on them.
8 According to status report, petitioners could not
produce the evidence of payment of Rs.4,50,000/- to
complainant, rather, according to record, one bigha land
.
has been sold by complainant for consideration of
Rs.90,000/- on 18.3.2020 in favour of petitioner Shivani.
9 Preserved samples of slides, taken at the time
of medical examination of petitioner Bhupesh, were sent
for chemical examination as well as DNA profiling, result
whereof has been received and as per report, though
human semen was detected in exhibit-1a (slacks/pyajmi of
victim), exhibit-1b (salwar of victim), exhibit 1e (vaginal
swabs of victim), exhibit 1f (vaginal slides of victim),
however, on DNA profiling and DNA mixed autosomal STR
DNA has been obtained from these exhibits, out of which
one pertains to a male individual but the same did not
show match with DNA profiling obtained from the blood on
FTA card of Bhupesh Singh.
10 Learned counsel for petitioner has submitted
that conduct of complainant clearly reflects that she is
trying to frame the petitioners in false case by creating
evidence with help of someone-else but DNA profiling
report falsifies all the allegations levelled against the
petitioners and therefore, her statement made in complaint
is not trustworthy.
11. Learned counsel for petitioners has submitted
.
that allegations of complainant that petitioner Bhupesh
was visiting her house during night to exploit her sexually
has been found to be false as DNA profiling obtained from
human semen from the payjami of victim as well as vaginal
swab and slide of victim has been found to be of someone-
else other than petitioner Bhupesh. He further submits that
charge under Section 376 IPC has been found to be false,
whereas, veracity of other allegations for commission of
offence under Sections 420 and 506 IPC are yet to be
substantiated and proved during trial and in these
circumstances, petitioners are entitled for bail.
12 Learned Additional Advocate General has
submitted that result of DNA profiling in present case is not
a conclusive piece of evidence to doubt the veracity of
complainant with respect to allegations levelled by her in
complaint and, therefore, for commission of crime, as
alleged in complaint, petitioners are not entitled for bail.
13 Without commenting upon the merits of rival
contentions of parties, but, taking into consideration the
entire facts and circumstances of the case placed before
Court and also taking note of the factors and parameters,
as propounded by the Supreme Court and this Court,
required to be considered at the time of adjudication of bail
.
application, I am of the opinion that petitioners may be
enlarged on bail in present case, at this stage.
14 Accordingly, petitioners are ordered to be
enlarged on bail, at this stage, subject to furnishing
personal bonds in the sum of Rs. 50,000/- each with one
surety each in the like amount to the satisfaction of trial
Court within a period of two weeks from today and also
subject to any further conditions to be imposed by trial
Court for assuring their presence during trial including the
following further conditions:-
(i) That the petitioners shall make
themselves available during
the investigation as well as trial
on each and every date as and
when required;
(ii) That the petitioners 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/her from disclosing such facts
to Court or to any police officer or
tamper with the evidence. They
shall not, in any manner, try to
overawe or influence or intimidate
the prosecution witnesses;
(iii) That the petitioners shall not
obstruct the smooth progress of
.
the investigation as well as trial;
(iv) That the petitioners shall not jump
over the bail and shall inform, in
writing, regarding change of
address, land line number and/or
mobile number, if any, in
advance, to concerned Police
Station;
(v) That the petitioners shall not
r commit the offence similar to the
offence to which they are
accused or suspected or the
commission of which they are
suspected;
(vi) In the event of repetition of
commission of offence, bail
granted in present case shall be
liable to be cancelled on taking
appropriate steps by
prosecution/police;
(vii) That the petitioners shall not
leave India without prior
permission of Court;
(viii) That petitioners shall not misuse
their liberty in any manner.
15 It will be open to the prosecution to apply for
imposing any such other or further condition on the
petitioners as deemed necessary in the facts and
.
circumstances of the case and in the interest of justice. It
will also be open to the trial Court/Magistrate to impose
any other or further condition on the petitioner as it may
deem necessary in the interest of justice.
16 In case the petitioners violate any condition
imposed upon them, their 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.
17 Learned trial Court is directed to comply with
the directions issued by the High Court, vide
communication No. HHC/VIG/Misc.Instructions/93-IV.7139
dated 18.3.2013.
18 Any observation made in this order shall not
affect the merits of case in any manner and will strictly
confine for the disposal of these bail applications filed
under Section 438 of Code of Criminal Procedure 1973.
The parties are permitted to produce/use copy
of order downloaded from the High Court website and the
trial Court shall not insist for certified copy of the order,
however, it may verify placing of the order from the High
Court website or otherwise.
Petition stands allowed and disposed of in
.
aforesaid terms.
May 24th, 2022 (Vivek Singh Thakur)
(ms) Judge
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