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Rohit Sharma vs. State Of Himachal Pradesh - (High Court of Himachal Pradesh) (11 Nov 2020)

Conduct of the victim is also relevant for deciding bail application of rape accused



In facts of present case, a boy aged 20 years, who is incarcerating upon his arrest for alluring and raping a minor girl, has come up before present Court seeking regular bail on the grounds that, the family of the girl forced her to lodge a false complaint to break their love affair. Based on a complaint, the police arrested the Petitioner in FIR registered under Sections 363, 366A & 376 of the Indian Penal Code, 1860 (IPC), Section 4 of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act) and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC & ST Act), disclosing cognizable and non- bailable offences.

In Gurbaksh Singh Sibbia and others v. State of Punjab, a Constitutional bench of Supreme Court held that, the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, a three-member bench of Supreme Court held that, the persons accused of non-bailable offences are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation.

In Dataram Singh v. State of Uttar Pradesh, Supreme Court held that, the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.

The conduct of the victim clearly points out that, she had initially gone with the Petitioner up to Primary School and after having coitus with him did not reveal the fact to anyone and despite that after two - three weeks of her own voluntarily accompanied him. Although, she could not have consented for sexual intercourse as well as leaving custody of her custodian but for deciding the bail, her conduct is sufficient to grant bail to the Petitioner.

An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.

The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions.


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