Rakesh Kumar @ Rockey vs State Of H.P

Anoop Chitkara, J

The petitioner, a boy, now aged 21 years, and is incarcerating since 2nd June 2019 upon his arrest for marrying a girl aged 16 years, impregnating

her, and after that on the allegation of instigation and abetment, she committed suicide by jumping in Sutlej river on 15th May 2019, and her corpus

recovered on 29th June 2019 from Kol Dam reservoir, has come up before this Court seeking regular bail.

Earlier, the petitioner had filed the following bail petitions:

(a) Bail Application No.34 of 2021, filed by the petitioner before Sessions Judge, Special Court (POCSO Act), Kinnary at Rampur, was dismissed vide

order dated 08.06.2021.

In Para 22 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Mr. Rajiv Rai, learned Counsel for the petitioner has argued number of points, which I shall deal one by one, apart from that he has referred in his

bail petition, which read as follows:-

“That the petitioner is a permanent resident of aforesaid address and is a citizen of India. On 15.05.2019 an FIR No. 45 of 2019 has

been registered against the accused petitioner and his parents at Police Station Anni, District Kullu, Himachal Pradesh for an offence

under Section 363, 366, 366A, 305, 376, 34 IPC and Section 4 of the Protection of Children from Sexual Offences Act,2013 at the instance

of Shri Nihal Singh who happens to be the father of deceased Smt. Tamanna who has allegedly committed suicide by jumping into Satluj

river on 15.05.2019. The present bail petition is being preferred by the petitioner through his maternal uncle Shri Ganga Ram, S/o Shri

Motu Ram, R/o Village Banol, Post office Bihhni, Tehsil Chatri, District Mandi, Himachal Pradesh as the petitioner is behind the bar since,

02.06.2019.

That as per the prosecution, the complainant Shri Nihal Singh lodged an FIR U/S 154 of the Criminal Procedure Code, wherein he has

stated that he is the resident of Village Kundar, Post Office Digerh, Tehsil and Police Station Anni, District Kullu, Himachal Pradesh and he

has two children and among them Ajay is elder son and daughter Tamanna is younger to Ajay. As per complainant, Tamanna was studying

in Class 10+1 at GSSS Shawaar and about 3-4 month before, Tamanna had left the home for School but did not returned back. As per

complainant, he had searched for his daughter in his relations but could not find her. As per complainant, after 3-4 days, deceased

Tamanna telephoned her mother and had told her that she has solemnized marriage with present accused petitioner. Further, as per

complainant he had also sent his brother's daughter to village Bishal to see Tamanna but the accused and Tamanna were not found there.

As per the complainant, he did not lodged any complaint for the reason because Tamanna had solemnized her marriage as per her own

wishes and she herself had told the complainant to not lodge any complaint in Police.

That further as per the complainant, on 12.05.2019/13.05.2019, deceased Tamanna had telephoned her mother and had complaint about

the beating and mal-treatment given to her by the accused bail petitioner. As per the complainant, deceased Tamanna had also complaint

that she is denied of food. As per complainant, on 15.05.2019 he came to know through villagers that Tamanna has jumped into the Satluj

River at about 12:30 afternoon. Thereafter, the complainant along with Sita Ram and Harish Sharma went to Loohri for the search of

Tamanna but could not found her anywhere on the bank of Satluj River. The complainant has alleged that the accused bail petitioner had

eloped the Tamanna from the School and after marrying her, the accused bail petitioner has forced Tamanna for committing Suicide and as

such the complainant has demanded the penal / legal action against the accused bail petitioner. Consequently the FIR for an offense U/s

363, 366,305, 376 and 34 of the IPC and further an offense U/s 4 of the POCSO has been registered.

That as per prosecution after lodging the FIR Police started investigating into the matter and during the investigation the articles of

deceased Tamanna was found at Luhri bridge and the dead body of the deceased was found in Kol Dam at Sunni and thereafter dead body

was sent for postmortem wherein fetus was found in the womb of the deceased Tamanna and as per the forensic examination report the DNA

of the accused bail petitioner has matched with the DNA of the fetus and the accused bail petitioner is the biological father of the fetus. As

per prosecution, in investigation allegedly, it has also come that the date of birth of the deceased Tamanna is 20.03.2003. Finally, the

accused bail petitioner along with his parents were arrested on 02.06.2019 and at present the accused ball petitioner is behind the bar.

Now, the Police report under Section 173(2) of the Criminal Procedure Code stands filed which is being annexed herewith as Annexure P/1.

That now from the entire story put forth by the prosecution and the investigation on face of it appears to be in a wrong direction. From

the story put forth by the prosecution itself, it appears that the deceased Tamanna herself had joined the company of the accused ball

petitioner and for this reason even she has denied the complainant from lodging any police complaint against the accused bail petitioner.

So in such circumstances no case against the accused bail petitioner for an offense U/s 363, 366and 366 A is made out at all.

That so far an offense U/s 376 is concerned, since the deceased Tamanna herself has joined the company and even after being brought

to home, she again joined the company of the deceased Tamanna. Meaning thereby no case under Section 376 is made out. So far the

Section 4 of the POCSO Act is concerned, unless it is proved that the deceased was below 18 years, the offense of POCSO is also not

attracted. Here, the Police has not even gone for bone ossification test. Moreso, though as per the police investigation the date of birth has

been allegedly found as 20.03.2003 but at the same time if the contents of the FIR is seen it appears that the father of the complainant did

not made any complaint to the police at the time when the deceased had voluntarily joined the accused bail petitioner for the reason

because he was knowing that the girl is above 18 years age and has solemnized her marriage voluntarily.

That now so far the offense Under Section 305 is concerned, the ingredient of the same is also not meted out prima facie and the things

are yet to be proved. Here, it is respectfully submitted that Section 305 deals with an offence for the abetment of suicide in case of a person

below 18 years. Further the Section 306 deals with the Abetment of Suicide. Now, whether the accused petitioner had abetted the deceased

for committing suicide or not it is yet to be proved. However, prima facie it appears from the statement of the parents of the deceased that

the deceased was happy in the company of the accused bail petitioner but it is the complainant and his family who were not happy with the

conduct of the deceased as she had solemnized her marriage in a Scheduled Caste family of the area.

That here, though at this stage the detailed appreciation of the evidence and to make a comment by the Hon'ble Court is not warranted

but at the same time to reach at the conclusion that whether any case for release of accused on bail is made out or not, there is no absolute

bar from going through the evidences adduced in the case. At this stage four witnesses has already been examined in the matter and the

copy of all those evidences are being annexed herewith as Annexure P/2.

That from the very perusal of the evidence deposed by the mother of the deceased it can be seen that she has admitted that she herself

had permitted her daughter to reside in the house of accused petitioner for the reason because once she was brought back by them. But, the

deceased again voluntarily left them for the accused petitioner. Meaning thereby, she was happy in the company of the accused bail

petitioner.

That apart from this, it is the specific case of the complainant that the deceased had made a telephonic call to her mother on

12/13.05.2019 and had complaint of maltreatment and beating by accused bail petitioner which fact on face of it appears to be the false for

the reason because the Police intentionally did not take the telephonic call details of the deceased. Moreso, if the deceased had made any

such complaint to her mother and her mother was knowing it that her daughter has been ousted from t he house, why she did not made any

complaint to anyone.

That as a matter of fact the accused bail petitioner has been falsely implicated in the matter for the reason because the accused ball

petitioner belongs to Scheduled Caste Category and he was in love with the deceased and the deceased had joined her company voluntarily

and due to stress being given to her by her mother, she committed suicide. From the very facts of the case itself is evident that the mother of

the deceased had totally detached herself from the deceased due to joining the company of the accused bail petitioner which she could not

tolerate. If the mother and father of the deceased would have concern with the deceased, they would have complaint to the police or

panchayat with regard to maltreatment to their daughter by the accused bail petitioner. Here, it is pertinent to mention that the house of the

accused petitioner and the complainant are in adjoining village.

That the story of prosecution appears to be highly doubtful and balance of convenience lies in favour of accused for the reason that

there is no explanation that why for CDR of the deceased and the mother of deceased has not been collected and placed with the Charge

sheet.

That it is the settled law that intention on the part of the accused that a person should commit suicide is an important ingredient. Even if

it is assumed that the deceased was being maltreated though not conceded then too it is settled law that the bad behavior is no instigation

either.

That otherwise, it is the case of the mother of the deceased that the deceased was not being allowed to come to her itself appears to be

false as if the accused petitioner would have intention like this, the deceased would not have come out of the house for committing suicide.

Further, if the complainant would have any sympathetic concern with the deceased, and if the proximate reason for committing suicide was

accused petitioner she would have come to the house of the complainant instead of committing suicide. It is more than settled that if there is

no dependable evidence, conviction cannot be made for the abetment of Suicide.

That as a matter of fact, no case prima facie is made out against the accused bail petitioner and the complainant did not complaint of

marrying her daughter itself is suggestive of the fact that the deceased girl was above 18 years and for this reason bone ossification test

was not conducted. Apart from this, the story emerges from the fact is that since the accused bail petitioner belongs to the Scheduled Caste

Category and since the deceased had joined the company of accused petitioner voluntarily which was not acceptable to the complainant

and his family and for such reason the deceased was put to mental pressure by her family and despite the love and affection given by the

accused to the deceased she did not come out of her mental pressure and agony put forth by the complainant and his family.

That here, the accused bail petitioner was in love with the deceased and the statement of the complainant itself shows that she was

happy in the company of the accused. Moreso here it can be seen that the accused bail petitioner at the time of offense was also just of 19

years age. The Copy of the matriculation certificate and caste certificate is being enclosed herewith as Annexure P/3and P/4 respectively.â€​

Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner. Another argument on behalf of the

State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

In response to the submissions mentioned in para- 5 of the bail petition that the victim of her own joined the company of the accused is a matter of

appreciation of evidence. Even if she had joined such company, being less than eighteen years of age is a matter of fact.

In answer to the submissions made in para-6 of the petition that since the victim had herself joined the company of the accused, as such, no case

under Section 376 of IPC is made out and further that Section 4 of POSCO Act will not apply unless the victim is proved to be under eighteen years

of age, is again a matter of appreciation of documents by the concerned Court. Prima facie, the status report reveals the age of the victim to be under

18 years of age at the time of offence. The status report mentions the date of birth of the victim to be 20th March, 2003 and date of occurrence is 15

th May, 2019 and earlier to that.

In response to para-7 that the offence Section 305 of IPC is not made out, the sentence provided under Section 305 is also life, which means the

burden is on the petitioner to make out a special case for the purpose of bail, which he failed to do so. This Court cannot go further because it may

prejudice the case of the parties in trial.

In response to paragraphs 8 onwards, all are subject matter of appreciation of evidence and it is not for this Court to comment on it, especially,

when the accused was charged for the commission of offence punishable under Section 305 of IPC, which relates to suicide of a minor.

Perusal of report under Section 173 of Cr.P.C reveals as follows:-

“On the basis of above analysis performed on the aforesaid exhibit, it is concluded that:1) A DNA profile obtained from Exhibit-6 (blood sample,

deceased Tamanna) was consistent as a biological mother of the DNA profile obtained from Exhibit-4 (bone, foetus).ii) A DNA profile obtained from

Exhibit-13 (blood sample on FTA card, Rakesh Kumar) was consistent as the biological father of the DNA profile obtained from Exhibit-4 (bone,

foetus).

This evidence is subject to appreciation and this Court is not commenting on it, but for the purpose of bail, however, the petitioner fails to make out

a case for bail.

Ld. Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons

mentioned above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution

or the accused.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

Given above, in the facts and circumstances peculiar to this case, the petition is dismissed. However, the petitioner shall be at liberty to file a new

petition on the same cause of action or different grounds.