GURSHARN SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Bail petitioner, Gursharn Singh, who is behind bars since 29.6.2018, has approached this Court in the instant proceedings filed under S.439 CrPC for grant of regular bail in FIR No. 111, dated 29.6.2018 registered at Police Station Dehra, District Kangra, Himachal Pradesh under Ss.376, 366 and 302 IPC. Status report filed on behalf of the respondent-State reveals that on 28.6.2018, Police after having received a telephonic information from the owner of Saurabh Hotel, Chintpurni that a girl staying in Room No. 423 in the said hotel alongwith bail petitioner, has expired on account of illness. Police visited the hospital at Chintpurni and sent the body of deceased girl to Dr. Rajinder Prasad Government Medical College, Tanda for post-mortem. Besides above, police also informed parents of the deceased and subsequently on the basis of statement made by mother of the deceased girl, arrested the bail petitioner. Complainant, Balbir Kaur, mother of the deceased girl, who reached Chintpurni, after having received information from the Police, got her statement recorded under S.154 CrPC, alleging that her daughter was studying in second year in college and had gone to Fagwara (Punjab) to attend NCC camp. Complainant alleged that her daughter was at Fagwara for NCC camp with effect from 19.6.2018 to 28.6.2018. She alleged that on 28.6.2018, she had enquired about the well being of her daughter, who had come in the contact of the bail petitioner at Dhir Hospital Banga, while the complainant was admitted there. Complainant alleged that her deceased daughter had disclosed to her before going to Fagwara that the bail petitioner extends threats to her on phone. She alleged that the bail petitioner took her daughter to Chintpurni on 28.6.2018 by exercising coercion, where he forcibly sexually assaulted the deceased against her wishes, as a consequence of which, she died. Complainant further alleged that the bail petitioner administered some medicine to her daughter forcibly, while committing forcible sexual intercourse with her, as a consequence of which, her daughter died, as such, appropriate action in accordance with law be taken against him. In the aforesaid background, FIR detailed herein above, came to be lodged against the bail petitioner on 29.6.2018 and since then, he is behind the bars.

(2.) Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency. Mr. Bhatnagar, while making this Court peruse the record, contends that there is overwhelming evidence collected on record by the investigating agency to the effect that the bail petitioner firstly taking undue advantage of innocence of the deceased victim, made her elope with him and then sexually assaulted her against her wishes in a hotel at Chintpurni. Mr. Bhatnagar further submits that the victim died on account of reaction of the medicine, which the bail petitioner applied on her private parts, while committing forcible sexual intercourse with the deceased, as such, he has been rightly booked under S.302 IPC besides S.376 IPC. Lastly, Mr. Bhatnagar, while referring to the status report filed by the police, contends that prior to the alleged incident, bail petitioner had made similar attempt with 2-3 other girls, as such, having taken note of his antecedents, the bail petitioner does not deserve any leniency.

(3.) Having heard learned counsel for the parties and perused the material available on record, this Court finds that as per own statement of the complainant (mother of deceased), bail petitioner had prior acquaintance with the deceased and they had been talking to each other on phone. It has also emerged during investigation that prior to alleged incident, bail petitioner had taken the deceased to some other city in Punjab, where though he had made an attempt to have sexual intercourse with the deceased but since the girl was a virgin, petitioner could not succeed in his attempt. It is not in dispute that on 29.6.2018 deceased, who was major at that time, went to Chintpurni, District Una, Himachal Pradesh alongwith bail petitioner on his bike, where both hired room in Hotel Saurabh. Record of the hotel collected by the investigating agency clearly suggests that names of both, bail petitioner and the deceased girl were entered in the register, before their stay in the hotel. Besides above, one Virender Singh, who had given room to the bail petitioner and deceased, nowhere stated that the deceased was taken in the room by the bail petitioner against her wishes, rather, he in his statement has stated that after taking room, both went inside the room and locked themselves inside the room. Similarly, there is nothing in his statement, from where it can be inferred that the deceased before alleged assault, raised any hue and cry, rather, as per statement of Virender Singh, bail petitioner came down to inform that the deceased was not feeling well and as such, she was taken to hospital where she unfortunately expired. Having taken note of the fact that the deceased was major at the relevant time and she, of her own volition, had gone to Chintpurni with the bail petitioner, this Court does not find any force in the claim of investigating agency that the deceased was coerced by the petitioner to accompany him to Chintpurni. Story coined by the investigating agency with regard to coercion does not appear to be plausible, especially on account of statement of employee of the hotel, who had entered names of the bail petitioner and deceased in the register while giving them room on rent. Rather, having taken note of the fact that the girl had prior acquaintance with the bail petitioner and at earlier point of time, she had visited some city in Punjab with the bail petitioner, this court is inclined to agree with learned senior counsel for the bail petitioner that the deceased, of her own volition, had gone to Chintpurni with the bail petitioner. Similarly, this Court having perused post mortem report finds that the victim died on account of reaction of medicine i.e. "Lignocaine" gel applied by bail petitioner on the private parts of the deceased. As per post mortem report, cause of death in the case is "lignocaine Hydrochloride toxicity likely due to its absorption from vaginal mucosa and hymnal tear." Learned senior counsel for the petitioner states that the gel used by bail petitioner is a local anaesthesia frequently used during medical procedures and as such, same cannot be said to be injurious, but, whether the gel could be used during sexual intercourse with a view to relieve the pain, is a question, which is of great significance in the present case. Mr. Chandel, learned senior counsel, while making this Court peruse the literature i.e. "Bailey & Love's Short Practice Of Surgery" (26th Edition)(CRC Press), made a serious attempt to persuade this Court to agree with his contention that the gel allegedly used by bail petitioner during alleged sexual intercourse upon the deceased, is commonly used during medical procedures in males and females alike. To buttress his argument, Mr. Chandel, made this Court to read following excerpt from the above literature (available at page 1313 of the book):