Sandeep Sharma, J.
1. Bail petitioner namely Nikku Ram, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, praying therein for grant
of regular bail in connection with FIR No. 80/2018 dated 7.5.2018, under Sections 452, 354-A & 376 of IPC and Section 4 of POCSO Act, registered
at PS Dhalli, District Shimla, HP.
2. Sequel to order dated 21.12.2018, passed by this Court, H.C. Vijay Kumar, I/o PP Mashobra, P.S. Dhalli, Shimla, HP, has come present in Court
alongwith record of the case. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis
of the investigation carried out by the investigating agency.
Record perused and returned.
3. Close scrutiny of the record/status report reveals that on 7.5.2018, victim-prosecutrix got her statement recorded under Section 154 Cr.PC., at PS
Dhalli, alleging therein that on 4.5.2018, bail petitioner, with wrong intentions, unauthorisedly entered her quarter at Mashobra and thereafter, ravished
her. Complainant-prosecutrix alleged that on the date of alleged incident, her father had gone to “HIPA†for night duty, whereas her mother had
gone to Pulwahal. She further alleged that at 10:00 pm, somebody knocked the door and she believing that her grandfather has come, opened the door,
but thereafter bail petitioner forcibly entered the house and made an attempt to outrage her modesty. Complainant-prosecutrix alleged that bail
petitioner in the presence of her younger sister not only, outraged her modesty but also sexually assaulted her against her wishes. Subsequently, on
7.5.2018, she came to the police station alongwith her parents and lodged a complaint against the bail petitioner, who happened to be a shop keeper in
the nearby locality at Mashobra. After recording the statements of prosecutrix as well as other family members, police arrested the accused on
7.5.2018 and since then, he is behind the bars. Prior to filing of present petition, petitioner had also filed bail petition before the learned court below, but
the same was dismissed as withdrawn.
4. Mr. Ajay Shandil, learned counsel for the petitioner while inviting attention of this Court to Annexure P-2 (Colly) i.e. statements of prosecution
witnesses, stated that during trial all the material prosecution witnesses including prosecutrix have resiled from their statements given to the police and
as such, present petition has been filed on behalf of the bail petitioner in the changed circumstances. Learned counsel, while making this Court to
peruse record as well as statements having been made by the prosecutrix, her mother and sister, forcibly contended that no case, if any, is made out
against the bail petitioner under Sections 452, 354â€"A and 376 IPC and as such, he deserves to be enlarged on bail. He contended that all the
material prosecution witnesses including victim and prosecutrix have resiled from their initial statements given to the police and as such, bail petitioner,
who is behind the bars for more than seven months, deserves to be released on bail forthwith. While referring to the medical evidence adduced on
record by the prosecution, learned counsel for the petitioner further contended that there is nothing to suggest that on the date of alleged incident,
victim prosecutrix was subjected to sexual intercourse as alleged in the FIR. Lastly, Mr. Shandil, learned counsel, contended that bail petitioner has
already suffered for 7 months for no fault of him and he being first offender deserves to be enlarged on bail, especially, when there is nothing on
record to suggest that previously cases, if any, were lodged against him in any competent court of law.
5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of challan in the competent
court of law as well as recording of statements of material prosecution witnesses, contended that keeping in view the gravity of the offence alleged to
have been committed by the bail petitioner, he does not deserve to be enlarged on bail. However, he fairly stated that bare perusal of statements
having been made by the victim-prosecutrix, her sister and her mother, clearly suggests that all the material prosecution witnesses have resiled from
their initial statements given to the police. Mr. Thakur while refuting the contention of Shri Ajay Shandil, that nothing has come in the medical evidence
contended that bare perusal of RFSL report adduced on record by the prosecution suggests that on the date of alleged incident, prosecutrix was
subjected to sexual intercourse and as such, it would be too premature at this stage to conclude that bail petitioner is innocent. Lastly, learned
Additional Advocate General contended that since trial has commenced and yet material prosecution witnesses are to be examined, it would not be in
the interest of justice to release the bail petitioner on bail at this stage. However, Mr. Thakur was unable to dispute that there is no case pending
against the bail petitioner and he is the first offender.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. Having heard the learned counsel for the parties and perused material available on record, especially, statements of victim prosecutrix, this Court
finds that victim- prosecutrix, has taken altogether u-turn before the court below during trial. Though in her initial statement given to police as well as
to magistrate, who recorded her statement under Section 164 Cr.PC, she had alleged that she was ravished by the bail petitioner on the date of alleged
incident, but if her statement on oath made before the learned trial Court is perused in its entirety, it completely demolishes the case of the prosecution.
Same is the case with the statements of other material prosecution witness i.e. PW7 younger sister, who as per the case of the prosecution, was
present at the time of the alleged incident and PW8 (mother of the victim), to whom allegedly prosecutrix, at the fist instance, narrated the whole
story. All the above material prosecution witnesses have not supported the case of the prosecution and as such, this Court sees no reason to keep the
bail petitioner behind the bars for an indefinite period during the trial. Similarly, having carefully gone through the medical evidence adduced on record
by the prosecution, this Court may not be in agreement with the argument raised by the learned Additional Advocate General.
8. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record
by the prosecution, but this Court having perused material available on record at this stage, sees no reason to let the bail petitioner incarcerate in jail
for an indefinite period. Repeatedly, it has been held by the Hon’ble Apex Court as well as this Court that till the time, guilt of individual is not
proved in accordance with law, he/she is deemed to be innocent and in the case at hand also, guilt, if any, of the bail petitioner is yet to be proved in
accordance with law by the prosecution by leading cogent and convincing evidence. It is well settled that till the time a person is not found guilty, one
is deemed to be innocent.
9. Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018,
has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to
ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not
appearing when required by the investigating officer. Hon’ble Apex Court has further held that if an accused is not hiding from the investigating
officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an
appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:
“2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent
until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific
offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of
our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever
expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that
more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial
discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally
there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person
perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an
accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed.
Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was
not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding
due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also
necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such
offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even
Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused
person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor
that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social
and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.
10. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the
question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be
withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in
support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused
involved in that crime.
 11. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-
“ The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive
nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial
when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to
be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases,
“necessity†is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his
liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the
question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial
punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been
convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.â€
12. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon’ble Apex Court has held as under:-
“ This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail,
had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial
when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is
deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a
caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of
disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him
to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against
conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the
interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining
the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and
circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21
of the Constitution was highlighted.â€
13. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following
principles to be kept in mind, while deciding petition for bail:
(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.
14. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail,
accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the
sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following
conditions:
(a) He 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 appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from
disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
15. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to
move this Court for cancellation of the bail.
16. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of
this application alone. The petition stands accordingly disposed of.
