Vikram Singh vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for raping a girl aged 8 years, has come up before this Court seeking regular bail on the grounds that

DNA test does not connect him with the offence and thus, if the perpetrator of the crime was not accused but someone else, and he is in jail since

October 2019, he cannot be denied bail.

A perusal of the petition reveals that the petitioner filed three bail applications which were dismissed. Now it is for the fourth time, he has again

filed the petition on the grounds of his being absolved by scientific evidence.

In Para 15 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are on 11th June, 2019, father of the victim gave a written complaint to the Police Station, Chirgaon,

about sexual exploitation of his daughter aged 8 years. The complainant informed that he alongwith his wife leave the house in the morning to earn

daily wages. On 9.6.2019 as usual, he alongwith his wife had gone to work and his two daughters were in the shed. In the evening, when he returned

to his shed, he noticed teeth bite on the cheek of his daughter aged 8 years. On inquiry, she told that Vikram aged 35 years, who is of village Dali has

inflicted such teeth bite. On this, he went to Vikram and enquired from him about it and Vikram said that the victim has fallen. The complainant

further stated that on 10.9.2019, Vikram teased his daughter when she was returning from school. The victim informed about this incident to the

complainant, who, in turn, informed it to his employer Anil Chauhan. After that, the complainant alongwith Anil Chauhan went to inquire about it from

Vikram, who met him near a temple. They said Vikram that they wanted to talk to him but he refused to discuss anything and left. The complainant

said that today, i.e., 11.6.2019, his daughter had gone to school and when she returned in the evening, then she was looking very upset. On inquiry, she

stated that Vikram met her after the school at 4.15 p.m.. Thereafter, he caught hold of her, opened the string of her salwar and did bad act with her.

On this, the wife of the complainant, i.e., mother of the victim, checked the privates of the victim and noticed that blood was oozing out from it. Based

on these allegations, the Police registered the FIR mentioned above.

The victim was taken to CHC, Sandasu for medical examination, where medical officer examined her. On 12.6.2019, police arrested Vikram aged

32 years. As per school certificate, the date of birth of the victim is 1.1.2012, according to which, she was aged 8 years. The ossification test also

corroborated her age to be around 8 years.

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

counsel for the petitioner has placed on record the certified copy of the statement of PW-1, Dr.Priyanka, Medical Officer, CHC Sandasu, who had

medically examined the victim.

While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to

very stringent conditions.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can

be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

REASONING:

After the registration of the FIR, the police had taken the child victim for her medico-legal examination in CHC, Sandasu. Dr. Priyanka (PW-1),

who examined the victim, had issued Medico-Legal Certificate on 12.6.2020 at 12.10. a.m, i.e., mid night. The doctor in the physical examination

noticed mild bleeding and reddish discharge. However, she also noticed hymen to be intact. After that, the doctor also obtained genetic material from

the privates of the victim and also her body sample. The police had also preserved clothes worn by the victim.

The MLC does reveal presence of bleeding and a reddish discharge from labia minora. As far as the fact that hymen was found to be intact is

concerned, it depends upon variety of reasons and one of which is that in very young girls, hymen is deep in vaginal canal. In the present case, the

victim was aged just eight years and as such, hymen being intact on its own is not a ground to infer that no penetration took place. Only significance

would be the that the penetration was not deep enough. Section 375, IPC makes penetratration an offence even if it is little bit. Thus, on this count, the

petitioner cannot claim bail.

However, after obtaining the genetic material from the privates of the victim and from the accused, the investigator had sent the same alongwith

the clothes of the victim to Forensic Science Laboratory for DNA matching. The report of the Forensic Science Laboratory, Junga dated 30.10.2019,

which is persee admissible under Section 293, Cr.PC is reproduced as follows:

“Four sealed parcels were received in the DNA Division, SFSL, Junga for examination on 13.09.2019 from Biology and Serology Division, SFSL,

Junga. The seals on the parcels were intact and tallied with the specimen seals sent with the docket. The parcels were signed and cut opened. The

description of parcels and exhibits contained therein was as under:-

Description of Parcels/Exhibits

Parcel-1:One sealed parcel bearing two seals of Biology and Serology Division, SFSL, Junga. It contained exhibit-1a and Exhibit-1b.

Exhibit 1a: One FTA card bearing brownish stains. The exhibit was mentioned as blood sampel of the convict on FTA.

The details of remaining exhibit was given in the Biology and Serology report vide no.1929-A SFSL Bio.(151)/19.

Parcel-2: One sealed parcel bearing three seals of Biology and Serology Division, SFSL, Junga. It contained exhibit-2a to exhibit-2c.

Exhibit-2a: One yellow, greeen and red coloured short sleeved small T-shirt showing marked cuttings. The exhibit was mentioned as T-shirt of the

victim.

Exhibit-2b: One brown, yellow coloured long sleeved small sweater showing marked cuttings. The exhibit was mentioned as sweater of the victim.

Exhibit-2c: One grey coloured lower/pajama showing marked cuttings. The exhibit was mentioned as lower/pajama of the victim.

Parcel-4: One sealed parcel bearing two seals of Biology and Serology Division, SFSL, Junga. It contained exhibit-4a and exhibit 4b.

Exhibit-4a: One FTA card bearing bownish stains. The exhibit was mentioned as blood sample of Vikram Singh on FTA.

The details of remaining exhibit was given in the Biology and Serology report vide no.1929-A SFSL Bio.(151)/19.

Laboratory Examination

The DNA isolation was carried out using Magnetic bead based method (Qiagen (sic) Advanced XL) and FTA protocol from the above mentioned

exhibits. The isolated DNA was checked for quality and quantity by 0.8% agarose gel electrophoresis and ..(sic) bromide staining. The DNA was

subjected to Multiplex PCR reaction for co-amplification of 20 autosomal STR loci and Amelogenin using Powerplex 21 PCR Amplification Kit. The

amplified products along with controls were run on automated DNA Sequencer (ABI 3130, Applied Biosystems, U.S.A). DNA profiles were

prepared and analysis was carried out using Gene Mapper ID Software v 3.2.

OBSERVATIONS:

i) Exhibit-1a (blood on FTA, victim), Exhibit-2a (T-shirt, victim), Exhibit 2b (sweater, victim), Exhibit-2c (lower, victim) and Exhibit-4a (blood on FTA,

Vikram Singh) showed amplification at all the 20 Autosomal STR loci and Amelogenin.

ii) A mixed DNA profile was obtained from Exhibit-2a (T- shirt, victim), its one component pertains to male individual which did not show match with

the DN profile obtained from Exhibit-4a (blood on FTA, Vikram Singh) while its other component showed match with the DNA profile obtained from

Exhibit-1a (blood on FTA, victim).

iii) A mixed DNA profile was obtained from Exhibit-2b (sweater, victim), its one component pertains to male individual which did not show match with

the DNA profile obtained from Exhibit-4a (blood on FTA, Vikram Singh) while its other component showed match with the DNA profile obtained

from Exhibit-1a (blood on FTA, victim).

iv) A mixed DNA profile was obtained from Exhibit-2c (lower, victim), its one component pertains to male individual which did not show match with

the DNA profile obtained from Exhibit-4a (blood on FTA, Vikram Singh) while its other component showed match with the DNA profile obtained

from Exhibit-1a (blood on FTA, victim).

CONCLUSION

On the basis of the above analysis performed on the aforesaid exhibits, it is concluded that:

i) Two DNA profiles (one female and one male) were obtained from the reference samples viz. Exhibit-1a (blood on FTA, victim) and Exhibit-4a

(blood on FTA, Vikram Singh) respectively.

ii) DNA profile obtained from Exhibit-2a (T-shirt, victim), Exhibit-2b (sweater, victim), Exhibit-2c (lower, victim) matched completely with the DNA

profile obtained from Exhibit-1a (blood on FTA, victim), and was different from the DNA profile obtained from Exhibit-4a (blood on FTA, Vikram

singh.

The doctor, who had examined the victim testified in the Court as PW-1 on 5.8.2020. She referred to the FSL report and opined that in her opinion,

the child victim was subjected to sexual assault but not for sexual intercourse.

Be that as it may, the question is who committed the sexual assault with the child. The allegation of the victim and her parents is that it was the

accused. Human semen was also detected on t-shirt, sweater and lower of the child victim. Thus, as per the case of the prosecution, there was some

assault and thus, the victim was either subjected to sexual assault or human semen was planted on her clothes. However, it is a matter of

investigation. However, the laboratory detected semen on the clothes of the victim, which points towards two possibilities, first is that she was sexually

exploited where the aggressor ejaculated outside her vaginal canal or on her clothes and the other possibility is that it was planted on her clothes. The

laboratory concluded that the genetic material obtained from the victim did not match with the genetic material obtained on FTA Card from the

Vikram Singh. Given the DNA obtained on FTA of accused did not match with anything from the victim, as such, it cannot be said that sexual assault

without penetration was performed. It was the accused, who had sexually assault the victim without penetration, as observed by the doctor. However,

it is a matter of appreciation of evidence, which is for the trial court and not for this Court, The petitioner makes out a case for bail, which is granted.

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.

In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and

irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that

any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to

switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR

25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station

conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate must satisfy

that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the

Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made

in favour of ""Chief Judicial Magistrate, District Shimla H.P.,

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g.,

HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the

linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information

be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR

number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be

endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC,

1973, or until discharged by substitution as the case may be.

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay

the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police

officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the

investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall

not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to

achieve the purpose.

Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking

cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

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.

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with

the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the

authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.