Kaku vs State Of Himachal Pradesh

Vivek Singh Thakur, J

This petition, under Section 439 Cr.P.C., has been filed seeking regular bail in case FIR No. 78 of 2020, dated 20.8.2020, registered under Sections 363, 366-A, 376 of IPC and Section 6 of the Protection of Child From Sexual Offences Act, 2012 (POCSO Act) in Police Station Chirgaon, District Shimla, H.P.

Status report stands filed, wherein it is stated that on 20.8.2020, complainant Ram Chand along with his wife Prema Devi had lodged a report in Police Station that his youngest daughter, who has studied up to 9th class, aged about 14 years, born on 11.10.2005, has left home on 15.8.2020 at about 7:00 P.M., without informing anybody. He had searched her at his own in his relations and on 19.8.2020, his daughter had telephonically informed that petitioner had kidnapped her and, therefore, she was along with him. It was further stated by complainant that petitioner is brother-in-law of his elder daughter Rinki.

It is stated in the status report that during investigation, Vineet, elder brother of petitioner (husband of sister of victim) had produced victim in Police Station on 21.8.2020, who was subjected to medical examination with consent of parents and her MLC report was obtained and after recording her statement, Sections 366-A and 376 IPC and Section 6 of POCSO Act were also added. It is further stated that at the same time, 19 years old petitioner was also interrogated and was arrested at about 6:00 P.M. and information in this regard was given to his elder brother Vineet Kumar. In MLC, it has been noticed that on detailed examination, no external visible injury was present all over body and no internal injury was found in her genital and it was opined that there was no sign of any physical or sexual assault, although possibility of sexual assault was not ruled out, awaiting FSL report.

Statements of victim under Sections 161 and 164 of Cr.P.C. have also been recorded on 21.8.2020 and 22.8.2020, respectively.

In statement recorded under Section 161 Cr.P.C., it is recorded that brother-in-law of her sister (petitioner) had contacted her on 15.8.2020 on mobile phone of her father, whereupon she had informed petitioner that she was intending to meet him and at about 2:00 P.M., she came to Dhamwari to met petitioner and after sitting for some time there, petitioner had asked her to solemnize marriage and to go Kaloti, whereupon they took lift in a Van to Badiara, wherefrom they went on foot to the house of elder father (Taya) of petitioner at Kaloti and on that day slept in separate rooms and petitioner had not teased or violated her on that day and on next date by taking a lift in vehicle , they reached in the hose of petitioner at Gayari and since then till 20.8.2020 she stayed in the house of petitioner and during that period petitioner had continuously made physical relations with her with intention to marry her and on 20.8.2020, she and petitioner were brought to the Police Station by husband of her sister Rinki, where her parents were already present and police had handed over her to her parents.

In statement recorded under Section 164 Cr.P.C., victim has stated that she had made a telephone call to petitioner on her one volition and had called him to Dhamwari by saying that she had to have some urgent conversation with him, whereupon both of them had met at Dhamwari where she had informed petitioner that she had decided to solemnize marriage with him to which he had replied that yet she had not attained age of marriage and on informing by her that she had been beaten by her parents, petitioner had advised her not to mind such beatings and further that in case he would solemnize marriage with her he would be jailed and thus he had proclaimed his decision that he was not ready to marry whereupon she had threatened to commit suicide. Petitioner last asked her to go back to home, but she had refused to do so for the reason that her parent would beat her. Then petitioner had agreed to solemnize marriage and thereafter both of them went to Dhamwari to Kaloti and there also petitioner had asked her to go home, but she had refused to accept it by saying that she was being tortured at home and then on 16.8.2020 both of them went to Gayari and stayed there up to 20.8.2020 and on that day she had received a telephone call of her father asking her to come down and her father had told her that case had not been registered and only he was intending to talk on the matter and thus he had requested to return. But when she reached at Chirgaon on request of her father, she was subjected to medical examination without her will and she has further stated that she would marry the petitioner only and also that she had forced the petitioner for marriage and there was no fault on his part and lastly she stated that she did not want to say anything.

Here is a case where teenagers are involved in a purported venture of marriage. Victim is 15 years old and petitioner is 19 years old. Petitioner is none else, but brother-in-law of elder sister of victim and victim has been found to be residing in the house of in-laws of her sister, where her sister and Jija (brother-in-law) were also present. It is apparent from the report lodged by the complainant and statements of victim that parents of victim were also having knowledge about the stay of victim in matrimonial house of their elder daughter and girl was not willing to come to her parents, however, she was convened by her father to come to Chirgaon on the pretext of convening talks in the matter and further that petitioner as well as victim were brought together to the Police Station by elder brother of petitioner, who is husband of elder sister of victim and now for want of attaining age of discretion by the victim, petitioner is facing registration of FIR against him. Petitioner and victim were not hiding themselves, but living together openly, that too in the matrimonial house of elder sister of victim, which smacks consent of elders at initial stage.

In the aforesaid facts and circumstance, I find that at this stage, petitioner is entitled to be enlarged on bail, as no fruitful purpose is going to be served by keeping him behind the bars. Accordingly, petitioner is ordered to be enlarged on bail in case FIR No. 78 of 2020, dated 20.8.2020, registered under Sections 363, 366-A, 376 of IPC and Section 6 of the Protection of Child From Sexual Offences Act, 2012 (POCSO Act) in Police Station Chirgaon, District Shimla, H.P., subject to furnishing personal bond in the sum of  Rs.30,000/- with one surety in the like amount to the satisfaction of trial Court, within three weeks from today, subject to following conditions:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that he shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) he shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice.

In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

It is made clear that enlargement of petitioner on bail shall not entitle the co-accused to release them on bail on sole ground of parity, but their cases are to be considered and decided, if any application is preferred by them, on its own merit and status report of the prosecution filed therein.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, he may verify the order from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.