Himachal Pradesh High Court
Rajesh Kumar vs State Of Himachal Pradesh on 27 August, 2025
( 2025:HHC:28987 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1761 of 2025
.
Reserved on: 22.08.2025
Date of Decision: 27.08.2025
Rajesh Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Karan Singh Kanwar,
Advocate.
For the Respondent /State : Mr. Jitender K. Sharma,
Additional Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
regular bail in FIR No. 02 of 2025, dated 18.01.2025, registered for
the commission of offences punishable under Sections 64, 127(1),
331(6) and 351(2) of the Bhartiya Nyaya Sanhita (BNS) and Section
3(I)(w)(i) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (SC & ST Act), at Police Station
Nahan, District Sirmaur, H.P.
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
( 2025:HHC:28987 )
2. It has been asserted that the petitioner was falsely
implicated. There is no legal evidence against the petitioner to
.
connect him with the commission of the crime. The petitioner is
the sole earning member of the family, and his detention is
causing hardship to his family members. The petitioner would
abide by the terms and conditions which the Court may impose.
Hence, he prayed that the present petition be allowed and the
petitioner be released on bail.
3. The petition is opposed by filing a status report
asserting that the victim was alone in her home on 16.01.2025. She
was sleeping with the lights switched on. One person entered her
room at 1-1:30 pm. The victim woke up and shouted for help. The
person caught her mouth and raped her. He threatened to kill her
in case the incident was revealed to any person. The police
registered the FIR and conducted the investigation. The petitioner
and the victim were medically examined. As per the result of the
analysis, human semen was detected on the vaginal swab, vaginal
smear slide and woollen pyjami of the victim and the smear slide
of the petitioner. The DNA taken from the woollen pyjami of the
victim matched the DNA of the victim and the petitioner. The
victim was found to be a member of the Scheduled Castes, whereas
( 2025:HHC:28987 )
the petitioner is not a member of the Scheduled Castes. The police
have filed the charge sheet on 15.03.2025. The prosecution has
.
cited 29 witnesses, and the matter is now listed for recording of
the statements of prosecution witnesses on 22.12.2025 and
24.12.2025. The petitioner would intimidate witnesses in case of
his release on bail. Hence, the status report.
4. I have heard Mr. Karan Singh Kanwar, learned counsel
for the petitioner and Mr. Jatinder K. Sharma, learned Additional
Advocate General for the respondent/State.
5. Mr. Karan Singh Kanwar, learned counsel for the
petitioner, submitted that the petitioner is innocent and was
falsely implicated. The informant's version is inherently
improbable, as no person sleeps with the lights switched on. The
victim stated that the assailant was a resident of a different
village, and his name was subsequently found to be Rajesh Kumar.
There is no material to connect the petitioner with the
commission of crime. Hence, he prayed that the present petition
be allowed and the petitioner be released on bail.
6. Mr. Jatinder K. Sharma, learned Additional Advocate
General, submitted that the petitioner has committed a heinous
( 2025:HHC:28987 )
offence. The prosecution evidence is yet to commence, and the
petitioner would intimidate the victim, in case of his release on
.
bail. Hence, he prayed that the present petition be dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The parameters for granting bail were considered by
the Hon'ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768:
2024 SCC OnLine SC 974, wherein it was observed at page 783: -
"Relevant parameters for granting bail
26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal offence, the
Court must consider relevant factors like the nature of the
accusations made against the accused, the manner in which
the crime is alleged to have been committed, the gravity of
the offence, the role attributed to the accused, the criminal
antecedents of the accused, the probability of tampering of
the witnesses and repeating the offence, if the accused are
released on bail, the likelihood of the accused being
unavailable in the event bail is granted, the possibility of
obstructing the proceedings and evading the courts of
justice and the overall desirability of releasing the accused
on bail. [Refer: Chaman Lal v. State of U.P. [Chaman
Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri)
1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC
(Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P.,
(2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar
Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis
Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru
Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16
( 2025:HHC:28987 )
SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State
(NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi),
(2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh
.
Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1
SCC (Cri) 558] .]
9. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: -
"12. The fundamental purpose of bail is to ensure the
accused's presence during the investigation and trial. Any
conditions imposed must be reasonable and directly related
to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered to
exercise its discretion to impose "any condition" for the
grant of bail under Sections 437(3) and 439(1)(a) CrPC, the
discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the presence
of the accused and ensure that the liberty of the accused is
not misused to impede the investigation, overawe the
witnesses or obstruct the course of justice. The relevant
observations are extracted herein below:
"14. The language of Section 437(3) CrPC, which uses
the expression "any condition ... otherwise in the
interest of justice" has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose "any
condition" for the grant of bail under
Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the accused
and ensure that the liberty of the accused is not misused to
impede the investigation, overawe the witnesses or obstruct
the course of justice. Several decisions of this Court have
dwelt on the nature of the conditions which can
legitimately be imposed both in the context of bail and
anticipatory bail." (Emphasis supplied)
( 2025:HHC:28987 )
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570,
this Court discussed the scope of the discretion of the Court
to impose "any condition" on the grant of bail and observed
.
in the following terms: --
"15. The words "any condition" used in the provision
should not be regarded as conferring absolute power on
a court of law to impose any condition that it chooses to
impose. Any condition has to be interpreted as a reasonable
condition acceptable in the facts permissible in the
circumstance, and effective in the pragmatic sense, and
should not defeat the order of grant of bail. We are of the
view that the present facts and circumstances of the case
do not warrant such an extreme condition to be
imposed." (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the bail application and
observed:
"4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to grant
or refuse the prayer for anticipatory bail, depending on
the facts and circumstances of the particular case. The
factors to be taken into consideration while considering an
application for bail are the nature of the accusation and the
severity of the punishment in the case of conviction and the
nature of the materials relied upon by the prosecution;
reasonable apprehension of tampering with the witnesses or
apprehension of threat to the complainant or the witnesses;
the reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his
abscondence; character, behaviour and standing of the
accused; and the circumstances which are peculiar or the
accused and larger interest of the public or the State and
similar other considerations. A criminal court, exercising
jurisdiction to grant bail/anticipatory bail, is not
expected to act as a recovery agent to realise the dues of
( 2025:HHC:28987 )
the complainant, and that too, without any trial."
(Emphasis supplied)
10. This position was reiterated in Shabeen Ahmed versus
.
State of U.P., 2025 SCC Online SC 479.
11. The present petition has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
12. The police obtained the various samples and sent them
to SFSL, Junga for analysis. Human semen was found on the
woollen pyjami of the victim. The DNA analysis of the woollen
pyjami showed the presence of the petitioner's DNA. This, prima
facie, corroborates the victim's version that the petitioner had
raped her. Hence, the submission that the petitioner was not
properly identified or that it was improbable for the victim to sleep
with the lights switched on will not assist the petitioner. His
presence has been established, prima facie, by the DNA report.
13. Mr. Karan Singh Kanwar, learned counsel for the
petitioner, submitted in the alternative that the victim was a major
and the possibility of a consensual relationship between the
parties cannot be ruled out. This submission will not help the
petitioner. It was laid down by the Hon'ble Supreme Court in Yedla
Srinivasa Rao v. State of A.P. (2006) 11 SCC 615, that when the victim
( 2025:HHC:28987 )
says that she had not consented, the Court has to presume the
absence of consent as per Section 114A of the Indian Evidence Act.
.
It was observed: -
"15. In this connection, reference may be made to the amend-
ment made in the Evidence Act. Section 114-A was introduced,
and the presumption has been raised as to the absence of con-
sent in certain prosecutions for rape. Section 114-A reads as
under:
"114-A. Presumption as to the absence of consent in
certain prosecutions for rape.-In a prosecution for rape
under clause (a) or clause (b) or clause (c) or clause (d) or
clause (e) or clause (g) of sub-section (2) of Section 376
of the Indian Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the question is
whether it was without the consent of the woman alleged
to have been raped and she states in her evidence before
the court that she did not consent, the court shall
presume that she did not consent."
16. If sexual intercourse has been committed by the accused
and if it is proved that it was without the consent of the pros-
ecutrix and she states in her evidence before the court that she
did not consent, the court shall presume that she did not con-
sent. The presumption has been introduced by the legislature
in the Evidence Act, looking to atrocities committed against
women, and in the instant case, as per the statement of PW 1,
she resisted, and she did not give consent to the accused at the
first instance, and he committed the rape on her. The accused
gave her assurance that he would marry her and continued to
satisfy his lust till she became pregnant, and it became clear
that the accused did not wish to marry her."
14. This judgment was followed in Anurag Soni Vs State of
Chhattisgarh, 2019 (13) SCC 1. Therefore, in view of the binding
precedents of the Hon'ble Supreme Court, the Court cannot infer
( 2025:HHC:28987 )
consent when the victim stated that she had not consented to the
sexual intercourse, and the submission that the petitioner had a
.
consensual relationship with the victim cannot be accepted.
15. The offence alleged against the petitioner is heinous.
He entered the victim's house in the middle of the night and raped
her. A home is considered to be the castle of a person, and forcible
entry in the middle of the night by itself is serious. The petitioner
had not only trespassed into the victim's house but had also raped
her. These allegations show the heinous nature of the offence.
16. The status report shows that the prosecution evidence
has not commenced; therefore, the possibility of the petitioner
intimidating the prosecution witnesses cannot be ruled out and
releasing the petitioner on bail will compromise the fair trial.
17. No other point was urged.
18. In view of the above, the present petition fails and the
same is dismissed.
19. The observations made hereinbefore shall remain
confined to the disposal of the present petition and will have no
bearing, whatsoever, on the merits of the case.
( 2025:HHC:28987 )
20. The present petition stands disposed of, and so are the
pending miscellaneous applications, if any.
.
(Rakesh Kainthla)
Judge
27th August 2025
(Shamsh Tabrez)
r to
