Renu Devi vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner, invoking Section 439 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), has approached this Court for grant of bail in case FIR No.3 of 2021, dated 3.1.2021, registered under Sections 376,370,506,376R/W, 511 read with Section 34 of the Indian Penal Code (for short ‘IPC’), Sections 6,17,18 of the Protection of Children from Sexual Offences Act (for short ‘POCSO Act’) and Sections 3,4,5 of the Immoral Trafficking Act, in Women Police Station Nahan, District Sirmaur, Himachal Pradesh.

Status Report stands filed. Record was also made available.

Victim, a 16 years old girl, resident of a village in District Sirmaur, in her statement, under Section 154 Cr.P.C., has stated that she has four sisters born out of first wedlock of her father. Her mother, when victim was a small child, had solemnized second marriage. Thereafter, her father also solemnized second marriage and there are three children out of second wedlock of the father. Stepmother oftenly used to scold her out of anger, whereupon she left her home so many times and came to Paonta Sahib. About five months ago (from January 2021), she ran away from home and stayed in Gurudwara at Paonta Sahib for about one month and thereafter in room of her girl-friend and during interregnum her friend introduced petitioner Renu with her, who took victim to her house. Petitioner was having a daughter and a son, out of whom daughter was elder. Victim developed friendship with daughter of petitioner and started living in house of petitioner. Anil Kumar, husband of petitioner and Mukesh Kumar, the eldest brother-in-law (Jija) of victim, were working at one place, because of which Mukesh Kumar came to know that victim was residing in the house of petitioner. Petitioner used to take entire household work from the victim and used to sexually exploit her by calling boys in room and charging money from the boys for that. She became familiar with the boys by face. Thereafter, she ran away from the house of petitioner and started living in Gurudwara. In between, she was noticed by her brother-in-law Mukesh, who took her to room of petitioner and tried to violate her in that room and threatened her that in case she would run away he would violate her. After four-five days, victim ran away with purse and phone of petitioner and came to Nahan and after taking out money from the purse, threw the purse in some Bus. At Nahan, she stayed for some time at Rani Tal and some time at Billa Roud and during night, on finding gate of any house open, she used to enter in the house and to sleep on the roof/lintel and at Nahan she was not violated by any person.

It is case of prosecution that on 2.1.2021, petitioner approached Police Chowki Gunughat alongwith victim to receive the mobile phone of petitioner, which was deposited by a resident of Rani Tal (Nahan), on finding it in the house.

It is further case of the prosecution that on the basis of strory disclosed by the victim that she entered a house at Rani Tal in Nahan to steal clothes but mobile phone was left by her in that house and the said phone was deposited by the residents of that house in Police Chowki Gunughat and petitioner, alongwith victim, had come to receive her mobile phone where victim disclosed her story to the police and during preliminary interrogation victim disclosed that mobile phone was also containing mobile numbers and photos of those boys who had violated her on call of petitioner in her room at Paonta Sahib. During interrogation, victim told her age as 16 years and, therefor,e she was referred for counselling to Child Welfare Committee and thereafter her statement under Section 154 Cr.P.C. was recorded.

On 3.1.2021, victim was medically examined and her statement under Section 161 Cr.P.C. was also recorded and on finding prima facie complicity of petitioner in commission of offence, she was arrested on 3.1.2021 at 7 p.m. in Women Police Station Nahan. Thereafter, statement of victim was also recorded under Section 164 Cr.P.C. before Judicial Magistrate First Class, Nahan.

On 4.1.2021, on identification by the victim of the room of petitioner and on her pointing out, in the same room, clothes of victim were recovered, and from the top of almirah, some used condoms and from the room empty packets of condoms were also recovered and taken in possession. Bed-sheet and blanket from a mattress lying on the floor were also taken in possession. Six condoms thrown by the customers were also recovered and seized from top of almirah of Room No.2. Details of Bank Accounts of petitioner were also obtained.

On 5.1.2021, Mukesh (brother-in-law of victim), after interrogation finding his complicity in commission of offence under Section 354A, 506 and 34 IPC, read with Section 10 of POCSO Act was also arrested at 7.30 p.m.

As per prosecution case, during interrogation, petitioner did not disclose name of any boy saying that she did not know names and addresses of the boys but their mobile numbers were in the phone. Victim, who was sent to Shelter Home Solan by Child Welfare Committee, on finding her necessity to join investigation, she was brought back from Shelter Home after taking order from Child Welfare Committee on 14.1.2021, and after unlocking the screen of the mobile phone victim identified the photographs of boys who had visited her. The photographs were developed and on the basis of identification of the victim and Call Details Record, Salman Khan and Sahib Aftab @ Masoom were associated in the investigation. Both of them were identified by victim as the persons who had violated her so many times by making payment to petitioner. On finding their complicity in commission of offence, they were arrested on 15.1.2021 at 8.10 p.m.

As per prosecution case, during interrogation, Salman Khan disclosed that he knew the petitioner since 3-4 months, and petitioner had disclosed to him that she was having a girl and if he was interested in her then she will charge `2,000/-, whereupon he started meeting the victim continuously and talking with her on phone and to visit room of petitioner alongwith Sahib Aftab @ Masoom, and both of them used to violate the victim by paying `1,500/- or `2,000/- to the petitioner and they were knowing that victim was of less than 18 years of age.

Third boy identified by the victim was a Child in Conflict with Law. During interrogation, he admitted that he had violated the victim twice by paying `1,000/- and `1,500/-respectively. Being a Child in Conflict with Law, he was handed over to his father. He was also identified by the victim, who, according to her, came in the room alongwith Salman Khan and Sahib Aftab and violated her. He was produced before Principal Magistrate, Juvenile Justice Board, Nahan and thereafter he was enlarged on bail.

During interrogation, it also surfaced that victim was used to be taken by Salman Khan in an ALTO Car, owned by his cousin Bilal Khan, and they used to do objectionable acts with the victim in that car.

On analysis by the Forensic Science Laboratory, human semen was detected on blanket. On DNA Profiling of blanket and condoms, one DNA Profiling matched with DNA Profile of Salman Khan and one DNA Profile pertaining to male individual obtained from one condom does not match with DNA Profile of Sahib Aftab, Salman Khan or the Child in Conflict with Law.

Learned counsel for the petitioner has submitted that the victim did not approach the police, for sexual assaults, but when she was arrested, for theft of mobile phone, she revealed her exploitation by the petitioner as alleged in the statement under Section 154 Cr.P.C. He has submitted that through victim is a minor of tender age, but as evident from her own statement she ran away from the house more than three times and she was having exposure to the society and others and, therefore, she cannot be treated as an innocent or helpless, rather she, in order to hide her own wrong and relations with the boys, has named the petitioner as main culprit responsible for violation of her person by charging money from the boys. He has further submitted that petitioner is having two small children, one of which is a small girl and, therefore, it is beyond imagination to think about running a brothel in the house of two rooms, where small kids of petitioner and her husband are also residing together. It has further been submitted that disclosure of Salman Khan that he had been meeting the victim continuously and used to talk with her on Mobile Phone also indicates that it was not a case of human trafficking or running a brothel but a case where victim, by passage of time, for residing in Paonta Sahib so many times not only in the house of petitioner but also in the room taken on rent by her girl-friend and in Gurudwara Sahib, was well acquainted with the residents of Paonta Sahib and for this reason she was in contact with Salman Khan and his companions, directly as well as telephonically.

It has also been contended on behalf of the petitioner that earlier also victim was found involved in a case of theft and she was kept in Open Shelter Home under the supervision and authority of her father for commission of offence.

For the aforesaid allegations and material on record, respondent-State was also directed to verify the facts. In response thereto, Child Welfare Committee has responded that earlier on 4.12.2018, victim was produced before the Committee by the police of Police Station Kanpur, Uttar Pradesh, in compliance of direction/order of Child Welfare Committee Kanpur, Uttar Pradesh. At that time victim was kept in Shelter Home Solan and, on 15.1.2019, she was handed over to her father who had undertaken to look after the child and the victim has been shifted to Permanent Balika Asharam Mashobra Tuti Kandi and now she is residing there.

Learned Deputy Advocate General has submitted that petitioner is involved in human trafficking of a minor girl and her physical, mental and sexual exploitation for a considerable long time and, therefore, the petitioner is not entitled for bail. He has further submitted that for the role attributed to the petitioner she is not entitled for bail on the basis of parity with other accused.

Learned counsel for the petitioner has submitted that co-accused Rakesh @ Mukesh, Sahib Aftab @ Masoom and Salman Khan have already been enlarged on bail by a Coordinate Bench of this Court vide orders dated 30.6.2021, 31. 5.2021 and 31.5.2021, passed in Cr.MP(M) No.1151 of 2021, 846 of 2021 and 845 of 2021, respectively. It has further been submitted that not only that the co-accused have been enlarged on bail but also the fact that the petitioner is a lady, keeping in view the provisions of Section 437 Cr.P.C. and also keeping in view the fact that the petitioner is mother of two small children and her husband is a working person, petitioner deserves to be enlarged on bail. He has further submitted that unless or until a person is convicted, he is to be treated as innocent. Learned counsel has also referred Dataram Singh v. State of Uttar Pradesh and another, (2018) 3 SCC 22.

It has further been submitted by the learned counsel for the petitioner that even if prosecution case is treated to be true as it is, then Rakesh @ Mukesh and petitioner are on same footing and whereas Rakesh @ Mukesh has been enlarged on bail, petitioner is under detention.

Learned counsel for the petitioner, under instructions, has submitted that in case the petitioner is ordered to be enlarged on bail, the petitioner is ready and undertakes to furnish local surety and also undertakes to abide by all the conditions that may be imposed by the Court in order to ensure presence of the petitioner during investigation and trial.

Without commenting upon merits of rival contentions of the parties, considering the material placed before me and also parameters and factors, propounded by the Supreme Court and this Court, necessary to be considered at the time of adjudication of bail application, I am of the opinion that, at this stage, petitioner may be enlarged on bail.

Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail, at this stage, subject to her furnishing personal bond in the sum of `50,000/-with one local surety, as undertaken by the petitioner, in the like amount to the satisfaction of the trial Court, and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial:

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

(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. She shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner 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 she 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 the petitioner 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) the petitioner 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. It shall be open for the trial Court to impose any other condition, as deemed necessary, upon the petitioner, independent of prayer of prosecution.

In case the petitioner violates any conditions imposed upon her, her 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.

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, passing of order may be verified from the High Court website or otherwise.

Petition stands disposed of in the aforesaid terms.