Himachal Pradesh High Court

Kartik Kumar vs State Of H.P on 22 November, 2024

Author: Virender Singh

Bench: Virender Singh

                                ( 2024:HHC:12219 )


     IN THE HIGH COURT OF HIMACHAL PRADESH
                     SHIMLA
                                        Cr.MP(M) No. of 2482 of 2024
                                        Reserved on 14.11.2024.
                                        Date of Decision: 22.11.2024
Kartik Kumar                                                      ...Applicant

                                        Versus


State of H.P.                                               .....Respondent
Coram:
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the Applicant              :        Mr. Narender Singh Thakur,
                                        Advocate.
For the Respondent              :       Mr. Tejasvi Sharma, Mr. H.S.
                                        Rawat and Mr. Mohinder
                                        Zharaick, Additional Advocates
                                        General with Ms. Ranjana
                                        Patial,   Deputy       Advocate
                                        General., assisted by ASI
                                        Harnam        Singh,       P.S.
                                        Mcleodganj, District Kangra.

Virender Singh, Judge (Oral)

Applicant-Kartik Kumar has filed the present

petition, under Section 483 of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (hereinafter referred to as 'BNSS'), for releasing

him on bail, in Case FIR No.35/2024, dated 13.06.2024,

registered under Section 376, (2) (n) of Indian Penal Code

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

( 2024:HHC:12219 )

(hereinafter referred to as the 'IPC'), with Police Station

Mcleodganj, Dharamshala, District Kangra, H.P.

2. According to the applicant, the police has arrested

him in the false complaint, which has been lodged on the basis

of a complaint of foreign national of Poland. The applicant is in

judicial custody.

3. According to the applicant, the case, registered

against him, is false, as according to the FIR, the alleged

offence had taken place in the intervening night on 6/7.06.2024,

but the FIR in question was lodged on 14.06.2024 and this fact

has been highlighted by the applicant to show that the case has

been lodged after a long delay and delay has not been

explained.

4. On the basis of the above facts, the applicant has

alleged that he has been named as accused in a false case. In

addition to this, the final opinion, given by the Medical Officer,

has also been relied upon by the applicant to seek the relief of

bail. In this regard, he has reproduced the medical opinion,

given by the doctor. The investigation of the case is stated to

be complete and according to the applicant, no useful purpose

would be served by keeping him in judicial custody.

( 2024:HHC:12219 )

5. The learned counsel appearing for the bail-

applicant has also put forward the young age of the applicant,

which has been pleaded in the application, as 24 years, as one

of the grounds to seek the relief of bail.

6. The applicant has given certain undertakings, for

which, he is ready to abide by, in case ordered to be released

on bail.

7. The applicant has tried his luck by moving the

similar bail application bearing No.69-D/XXII/2024, titled as

Kartik Kumar versus State of H.P., before the Court of learned

Additional Sessions Judge-I, Kangra at Dharamshala, however,

his application was rejected on 01.10.2024.

8. When put to notice, the police has filed the status

report, disclosing therein that on 13.06.2024, a complaint, on

helpline No.112, was received from the holder of Mobile Phone

No.98059-xxxxx, who is stated to be Poland national.

According to the information, she has been raped. When, the

police contacted the prosecutrix, then, she disclosed that Kartik

Chauhan (applicant), who is running a travel agency, having

mobile phone No.98167-85061, raped her, upon which, the

said information was duly entered in the Roznamcha and ( 2024:HHC:12219 )

Investigating Officer reached at the spot, where prosecutrix

moved the following complaint:-

"To The Station House, Police Station Melooshganj, Sir, I arrived to India on 11/05/2024, I moved into Sawarna and Raj House at Dhramkot on 16/05/2024. On 20/05/2024, I went to exchange money at Hazi Adventure Agency that is next to Kartik Kumar Chouchan (president of Bhagsu. Tel.91 9816785061) fruit and vegetable shop and that is run by his friend Anil, but on that day he Kartik exchanged money for me. He proposed that we become friends so we exchanged What's app contact details and started exchanging some messages from that date. He soon started to push me towards having a romantic relationship with him, which I was telling him I wasn't ready for. But he wasn't listening and every time we met he was forcing kissing and touching my body, which I wasn't comfortable with and it was making me upset. I was telling him that we can only be friends but not in romantic relationship. He was saying that he loves me and that he wants to marry me. This was very uncomfortable to me because I didn't know much about him, but also because he is, I believe, 24 years old and I am 39. I was asking questions about him to get to know him, but he wasn't asking questions about me to get to know me. He wasn't interested in my family, my likes or dislikes or anything about me, which felt weird to me. He was inviting me to have meals and drinks with him, at which he was forcing touch and kissing me. I also noticed at that time that he was lying to me, ( 2024:HHC:12219 )

because when I was asking him that I don't want to kiss or touch him, he would do it anyway. I also noticed he was leaving my hand anytime we were walking past his family or neighbours. He was treating me like a shit in front of them but also when only together. We met couple of times during last three weeks, during which my mental health was gradually becoming worse and worse due to his behaviour towards me. I was frequently crying because of his behaviour towards me. He was pressuring me to keep meeting him, he was telling me that he misses me a lot, which again felt very strange to me because he barely knew me. He was also saying to me that I shouldn't be taking ayurvedic treatments for which I came to India for, which was strange to me, because I am trying to look after my health. All this time spent in his company confused me very much, because he was constantly saying that he loves me and he misses me but then was treating me in a horrible way. He was never coming to see me, he was insisting for me to come to his place every time. He was also forcing me to take a room to rent from him or his uncle. Last Thursday he invited me to see him in Upper Bhagsu for a meal. He ordered a taxi for me to pick me up from my homestay guesthouse at Sawarna House. I believe I arrived to upper bhagsu at around 3pm due to traffic. We first had some juice then a meal. Then he said that he will show me a room to rent. We went to see the room. He asked me to stay in the room overnight. I told him I am not comfortable staying there, but he insisted and he told me he will buy me things that I needed to stay in the room. He asked me if he can stay with me in the room overnight and I said that only if he doesn't touch or kiss me and that I don't want ( 2024:HHC:12219 )

to have any sex with him. He said that ok, he will not touch or kiss me or have sex with me. We went to the room in the evening, he ordered some meal there from Baba Cafe, which he brought to the room. After that he proposed we watch a film. After a while he discontinued playing the movie and started kissing and touching me and started forcing touching my breasts, my abdomen and taking off my underwear. Then he went on to have sex with me. He has been penetrating me time and time again although it was very painful to me and I was asking him to stop. He didn't listen but keep on saying "no, slowly, slowly" and kept on penetrating me. This happened three times that night. Every single time he was refusing to stop penetrating me when I asked him to do so. I the meantime he was forcing me to touch and caress his penis, although I was saying I don't want that. I was bleeding a lot from my vagina. There was blood everywhere on the bedsheet. He also did "69"

position on me, despite my refusal. Then in the morning he forced me to go under the shower with him and also forced me to touch and caress his penis to then explode on my abdomen and legs. The following two days I had a very strong bleeding from my vagina. After that day I met him to get some clarification around what happened. He apologized for it but also started becoming more rude and rude to me when I was asking for clarifications from him. I told him that I will inform the police about what happened, then he got scared and kept asking me not to do so. Kindly take legal action against Kartik Kumar Chouchan."

9. On the basis of the above facts, police registered

the FIR in question and criminal machinery swung into motion.

( 2024:HHC:12219 )

10. Thereafter, the statement of the prosecutrix, under

Section 161 Cr.P.C. was recorded and was medico legally

examined. In the intervening night of 13/14.06.2024, the

physical evidence was also preserved by the doctor and

handed over to the police. On 14.06.2024, spot was visited by

the police, along with the prosecutrix and on her identification,

physical evidence from the spot was also taken into

possession. The statement of the prosecutrix, under Section

164 of Cr.P.C. was also recorded by producing her before the

competent Court of law. Subsequently, the accused was

arrested on 14.06.2024. He was also medico legally examined.

11. After receiving the report from FSL, police prepared

the challan and submitted the same to the competent Court of

law, from where, it was committed to the Court of learned

Additional Sessions Judge-I, Kangra at Dharamshala and now,

case is stated to be fixed for consideration on charge.

12. On the basis of the above facts, learned Additional

Advocate General, appearing for the State, has opposed the

prayer, so made, in the application.

13. The applicant has placed on record the

photocopies of the report of FSL. Relevant portion of the report

is reproduced as under:-

( 2024:HHC:12219 )

"Lab Examination & Results The exhibits/cuttings were subjected to biological and serological analyses in the laboratory. Benzidine test was performed to defect the presence of blood. The species of origin was determined by using Gel-Diffusion technique. Acid phosphatase test and microscopic examinations were carried out for the detection of semen. On the basis of aforesaid examinations, results were as under:-

1. Blood and semen were not detected in exhibit-1a (bra, victim), exhibit-1b (vaginal swab, victim), exhibit-1c (viginal swab, victim) exhibit-1d (vaginal slides, victim), exhibit-1e (pubic hair, victim), exhibit 4a (underwear, Kartik Kumar), exhibit-4b (pubic hair, Kartik Kumar), exhibit-4c (penile swab, Kartik Kumar) and exhibit-6 (bedsheet).

2. Human blood was detected in exhibit-2 (blood sample on FTA card, victim) and exhibit-5 (blood sample on FTA card, Kartik Kumar)."

14. The investigation in the present case is complete,

as, this fact is clearly demonstrated from the stand of the

prosecution that the case is now fixed for consideration on

charge. The accused is a young man of 24 years and having

no other criminal history.

15. In such situation, keeping the applicant in the

judicial custody, that too, for the indefinite period, would be

nothing, but a pre-trial punishment, which is prohibited under

the law, as presumption of innocence is still available with the

applicant.

16. At this stage, the plea of the applicant that there is

delay of about seven days in lodging the FIR, cannot be said to ( 2024:HHC:12219 )

be inconsequential. No doubt, the prosecution will get the

opportunity to explain the delay, during the trial. However, for

the limited purpose of bail, the said fact, along with the report of

FSL, can be taken into consideration.

17. While deciding the bail application, the detailed

discussion about the evidence, so collected by the prosecution,

should be avoided, as, the same would cause prejudice to the

case of the prosecution, as well as, the applicant. Since, the

applicant is the permanent resident of District Kangra, as such,

it cannot be apprehended that in case, he is ordered to be

released on bail, he may not be available for the trial.

18. In this case, the prosecution has disclosed her age

to be 39 years, whereas the applicant is stated to be aged

about 24 years.

19. Considering all these facts, this Court is of the view

that the applicant is entitled for the relief, as claimed in the

application. Consequently, the bail application is allowed and

the applicant is ordered to be released on bail, subject to

furnishing a bail bond in the sum of Rs.50,000/- with one

surety, in the like amount to the satisfaction of the learned trial

Court.

( 2024:HHC:12219 )

20. This order, however, shall be subject to the

following conditions:-

"a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing the appropriate application;

b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and

d) The applicant shall not leave the territory of India without the prior permission of the Court."

21. Any of the observations, made hereinabove, shall

not be taken, as an expression of opinion, on the merits of the

case, as these observations are confined, only to the disposal

of the present bail application.

22. It is made clear that respondent-State is at liberty to

move an appropriate application, in case, any of the bail

conditions is found violated by the applicant.

( 2024:HHC:12219 )

23. The Registry is directed to forward a soft copy of

the bail order to the Superintendent of Jail, District Jail,

Dharamshala, through e-mail, with a direction to enter the date

of grant of bail in the e-prison software.

24. In case, applicant is not released within a period of

seven days, from the date of grant of bail, the Superintendent

of Jail, District Jail, Dharamshala, is directed to inform this fact

to the Secretary, DLSA, Kangra. The Superintendent of Jail,

District Jail, Dharamshala, is further directed that if the

applicant fails to furnish the bail bonds, as per the order passed

by this Court, within a period of one month from today, then, the

said fact be submitted to this Court.

(Virender Singh) Judge November 22, 2024 (subhash)

KARAN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 84c56a3b8f7868712974087154d73f59e80c39f7c3c3b

SINGH 2c96099a032dbd3936c, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= 9b72faf266a1e783d9d187288c6909df3236ec1940746 5bd50727f28fe45a07c, CN=KARAN SINGH KANWAR Reason: I am the author of this document

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