Himachal Pradesh High Court

Lucky Kumar vs State Of Himachal Pradesh on 24 July, 2024

Neutral Citation No. ( 2024:HHC:5722 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1428 of 2024

.

Reserved on: 12.07.2024

Date of Decision: 24.07.2024.

Lucky Kumar ...Petitioner

Versus

State of Himachal Pradesh

Coram
r to ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No

For the Petitioner : Mr. Vijender Katoch, Advocate.
For the Respondent : Mr. Ayushi Negi, Deputy Advocate
General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested vide FIR No. 64 of 2024, dated 22.05.2024, registered at

Police Station Shahpur, District Kangra, H.P. for the commission

of offences punishable under
Sections 376
,
,
and
of

the Indian Penal Code (
IPC
). As per the prosecution, the victim

came out of her home on hearing the noise on 18.05.2024, in the
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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night at 12:00 O'clock. A boy ran towards her home. The

petitioner also came to her home and assaulted her. The

.

petitioner thought that the boy had come to meet the victim.

The petitioner assaulted and raped the victim. He also

threatened the victim. She remained silent. However, the

petitioner started defaming her in the locality and started saying

that he would again rape her. Hence, the victim made a report to

the police. The police registered the FIR and arrested the

petitioner. The petitioner is innocent and he was falsely

implicated. The prosecution story is highly improbable. The

petitioner had only asked the victim about the person with

whom she was talking in the middle of the night. The person ran

away and the victim falsely implicated the present petitioner.

The victim made a false complaint after four days to save

herself. The victim is married and was unable to explain why she

was found with a stranger at midnight. The investigation is

complete and no recovery is to be effected from the petitioner.

The petitioner is a permanent resident of District Kangra, HP

and there is no likelihood of his absconding. The petitioner

would abide by all the terms and conditions, which may be

imposed by the Court. Hence, the petition.

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2. The petition is opposed by filing a status report

asserting that the victim made a complaint to the police stating

.

that a quarrel had taken place in front of her house on

18.05.2024 at 12:00 am. The victim came out of the house. One

boy ran towards her home. The petitioner Lucky Kumar also

came to her home. He gave beatings to her because he thought

that the boy had visited her house to meet her. The petitioner

raped the victim and threatened to kill her in case the incident

was revealed to any person. However, the petitioner was

defaming her and threatening to rape her. The police registered

the FIR and arrested the petitioner. The victim and the

petitioner were medically examined and samples were

preserved. As per the investigation, the victim and petitioner

belong to the same village. The petitioner got recovered the stick

with which he had beaten the victim. The result of the analysis is

awaited. The petitioner has been in custody since 22.05.2024.

3. I have heard Mr. Vijender Katoch, learned counsel for

the petitioner and Ms. Ayushi Negi, learned Deputy Advocate

General, for the respondent-State.

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4. Mr Vijender Katoch, learned counsel for the

petitioner submitted that the prosecution version is highly

.

improbable. The incident had occurred in the middle of the night

when a quarrel has taken place. It is unlikely that the petitioner

could have raped the victim when the noise could have attracted

the villagers. The victim would have shouted for help and

gathered the people. The whole story is false and was made to

divert attention from the fact that the victim was seen with the

stranger at her home in the middle of the night. Therefore, he

prayed that the present petition be allowed and the petitioner be

released on bail.

5. Ms. Ayushi Negi, learned Deputy Advocate General

for the respondent-State submitted that the petitioner had

raped the victim by entering into her house in the middle of the

night. Such conduct cannot be lightly condoned. The petitioner

trespassed in the house of the victim and raped her. She

submitted that the offence is heinous and the petitioner should

not be released on bail.

6. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

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7. The parameters for granting bail were considered by

the Hon'ble Supreme Court in
Bhagwan Singh v. Dilip Kumar
@

.

Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was

observed as under:-

"12. The grant of bail is a discretionary relief which nec-
essarily means that such discretion would have to be ex-
ercised in a judicious manner and not as a matter of

course. The grant of bail is dependent upon contextual
facts of the matter being dealt with by the Court and may
vary from case to case. There cannot be any exhaustive
parameters set out for considering the application for a

grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in
mind factors such as the nature of accusations,
severity of the punishment, if the accusations entail
a conviction and the nature of evidence in support

of the accusations;

(b) reasonable apprehensions of the witnesses be-

ing tampered with or the apprehension of there be-
ing a threat for the complainant should also weigh

with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evi-
dence establishing the guilt of the accused beyond

reasonable doubt but there ought to be always a
prima facie satisfaction of the Court in support of
the charge.

(d) Frivolity of prosecution should always be con-
sidered and it is only the element of genuineness
that shall have to be considered in the matter of
grant of bail and in the event of there being some
doubt as to the genuineness of the prosecution, in
the normal course of events, the accused is entitled
to have an order of bail.

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13. We may also profitably refer to a decision of this Court
in
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Ya-

dav (2004) 7 SCC 528 where the parameters to be taken

.

into consideration for the grant of bail by the Courts have

been explained in the following words:

"11. The law in regard to grant or refusal of bail is
very well settled. The court granting bail should ex-

ercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of grant-
ing bail a detailed examination of evidence and
elaborate documentation of the merit of the case

need not be undertaken, there is a need to indicate
in such orders reasons for prima facie concluding
why bail was being granted particularly where the
accused is charged of having committed a serious

offence. Any order devoid of such reasons would

suffer from non-application of mind. It is also nec-
essary for the court granting bail to consider among
other circumstances, the following factors also be-
fore granting bail; they are:

(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of

supporting evidence.

(b) Reasonable apprehension of tampering with the

witness or apprehension of threat to the com-

plainant.

(c) Prima facie satisfaction of the court in support
of the charge. (See Ram Govind Upadhyay v. Sudar-
shan Singh [(2002) 3 SCC 598: 2002
SCC (Cri) 688]
and Puran v. Rambilas
[(2001) 6 SCC 338: 2001 SCC
(Cri) 1124].)"

8. A similar view was taken in
State of Haryana vs

Dharamraj
2023 SCC Online 1085, wherein it was observed:

7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide the

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grant of bail in
Ram Govind Upadhyay v. Sudarshan
Singh
, (
2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan
, (2004) 7 SCC 528. In Prasanta

.

Kumar Sarkar v. Ashis Chatterjee
, (2010) 14 SCC 496, the

relevant principles were restated thus:

'9. ... It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or

rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles
laid down in
a plethora of decisions of

this Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:

r (i) whether there is any prima facie or reasonable

ground to believe that the accused had committed
the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of
conviction;

(iv) danger of the accused absconding or fleeing if

released on bail;

(v) character, behaviour, means, position and
standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses
being influenced; and

(viii) danger, of course, of justice being
thwarted by grant of bail.'

9. The contents of the FIR show that a quarrel was

taking place outside the home of the victim at 12:00 am on

18.05.2024 when one person ran towards the house of the victim.

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The petitioner followed him. The petitioner gave beatings to the

victim and also raped her. The victim reported the matter to the

.

police on 22.05.2024 after four days of the incident. She

explained the delay by saying that the petitioner was defaming

her and threatening her to rape her. These averments show that

the complete truth is not being disclosed. There is a force in the

submission of learned counsel for the petitioner that prima facie

the petitioner could not have raped the victim when a quarrel

had taken place and any cry would have attracted the people.

Further, the petitioner was following the person and would be

more concerned about preventing the person's escape. Prima

facie it appears that the prosecution is not telling the complete

truth and it is difficult to believe the prosecution's version.

10. The petitioner has been in custody since 22.05.2024.

The status report does not show that the presence of the

petitioner is required for any purpose. The petitioner has been

sent to judicial custody, which means that his custodial

interrogation is not required. The status report further shows

that the result of the analysis is still awaited. Some time will be

consumed in preparing the challan after the receipt of the

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report. The petitioner cannot be kept inside the jail indefinitely

awaiting his trial.

.

11. The petitioner stated that he is a permanent resident

of District Kangra, HP, which is not denied in the status report.

Thus, there is no chance of the petitioner's absconding and not

facing the trial.

12.

It was submitted that the petitioner and the victim

belong to the same village and the petitioner can intimidate the

victim. The bail cannot be denied on this ground alone. Suffice it

to say that the police would have the right to approach the Court,

in case the petitioner violates the conditions of bail.

13. In view of the aforesaid discussion, the present

petition is allowed and the petitioner is ordered to be released on

bail in the sum of ₹1,00,000/- with one surety of the like

amount to the satisfaction of the learned Trial Court. While on

bail, the petitioner will abide by the following terms and

conditions: -

(i) The petitioner will not intimidate the witnesses nor will
he influence any evidence in any manner whatsoever.

(ii) The petitioner shall attend the trial in case a charge sheet
is presented against him and will not seek unnecessary
adjournments.

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(iii) The petitioner will not leave the present address for a
continuous period of seven days without furnishing the
address of intending visit to the SHO, the Police Station

.

concerned and the Trial Court.

(iv) The petitioner will furnish his mobile number, and social
media contact to the Police and the Court and will abide
by the summons/notices received from the Police/Court

through SMS/WhatsApp/Social Media Account. In case of
any change in the mobile number or social media
accounts, the same will be intimated to the Police/Court
within five days from the date of the change.

14.

It is expressly made clear that in case of violation of

any of these conditions, the prosecution will have a right to file a

petition for cancellation of the bail.

15. The observation made herein before shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

(Rakesh Kainthla)
Judge
24th July, 2024

(Shamsh Tabrez)

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