Takdir vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of the Code of Criminal Procedure (for short Cr.P.C.) for enlarging him on bail in case FIR No.43 of 2022, dated 19.2.2022, registered in Police Station Paonta Sahib, District Sirmaur, Himachal Pradesh, under Sections 363, 366, 376, 506 read with Section 34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act.

Status report stands filed. Record was also made available. Petitioner has also placed certain documents on record.

Facts, emerging from the material placed before me, are that on 17.2.2022, complainant Sharda Devi (sister of victim), submitted an application to Station House Officer, Police Station Paonta Sahib, District Sirmour, Himachal Pradesh, stating therein that since last six months she was residing with her husband in a rented accommodation at Badripur and was serving in Jaymurti Company Gondpur. For looking after her child, she was keeping her 18 years old younger sister (victim) with her. On 15.2.2022, when she came back from duty, at 3 p.m., victim was not found at home and despite enquiry and searching for her in the relation and nearby areas she was not traceable and, therefore, prayer was made to trace her.

After lodging missing report, on the basis of aforesaid complaint, police party alongwith complainant Sharda Devi went in search of victim to Haryana and recovered the victim from the house of petitioner in village Kasandi, Tehsil Gohana, District Sonipat. At that time, victim had stated that nothing wrong was done to her and she came with Takdir on her own volition and consent. Victim, after recovery, was handed over to her sister complainant Sharda Devi.

As per Status Report, lateron, victim narrated the entire episode to her sister, whereupon complainant, on 19.2.2022, alongwith her victim sister, submitted a complaint in the Police Station for registering a case for kidnapping, forcible marriage and physical exploitation of victim, stating therein that her husband is serving in a Parlour at Kafota and in her matrimonial family there are her parents, five sisters and one brother, and victim is her youngest sister. Further that, on 15.2.2022, at about 5-6 p.m., Takdir, Suresh Singh, Ram Ratti and one more lady from Haryana came to Paonta Sahib and requested for engagement of victim with Takdir to which complainant consented but with rider that engagement would be confirmed after having permission from parents, upon which those persons requested for facilitating talk between the boy and the girl for understanding each other. By accepting the request, complainant sent her sister in a Car having ‘DL’ number for conversation with Takdir and complainant herself became busy in preparing tea. After about 2-3 minutes, complainant noticed that neither Car was there nor her sister, whereupon she went to Police Station and lodged missing report of her sister to avoid defamation of her sister and family. It has been further stated in the complaint that thereafter police accompanied complainant to Haryana and recovered her sister and at that time her sister stated that she had come on her own volition but on arriving at Paonta Sahib, victim disclosed her that after taking her to Kasandi, i.e. village of petitioner, she was forcibly married to Takdir and her signatures were obtained on some documents and she was violated without her consent, and further that on arrival of Himachal Police in Haryana, Takdir and his father Suresh Singh, on disclosure of or making statement against them, had threatened to kill the victim. As per complainant, she narrated the incident to her mother and her mother informed that age of victim was 17 years.

On the basis of aforesaid complaint, FIR was lodged and petitioner and his father were arrested. Father of petitioner has been enlarged on bail.

In her statement, recorded under Section 161 Cr.P.C., complainant has stated that she was already having relatives in Haryana and with their reference four persons Takdir, Suresh Singh, Ram Ratti and one another woman, on 15. 2.2022, came to her village Shamah during day time, requesting for marriage of her younger sister (victim) with Takdir for which complainant had agreed subject to confirmation after having consent of parents and, thereafter, as Takdir and others had to go back to Haryana, complainant and victim also come in their car to Paonta Sahib, and they were dropped near their rented accommodation at Badripur. Takdir and others, in their Car left the place. In the evening, Takdir and his father Suresh came to their quarter and expressed desire to talk with the girl separately and asked the victim to accompany them to Paonta Sahib Gurudwara for offering prayer, whereupon complainant sent her sister (victim) with them but when victim did not return she made calls to her relatives but whereabouts of victim could not be traced and, therefore, missing report was lodged in Police Station Paonta Sahib. Lateron, complainant disclosed to the police about visit of Takdir and his father, and that victim had also made her a telephonic call informing that Takdir and his father had brought her to Kasandi in Haryana and expressed her desire to come back to Paonta Sahib, whereupon, on 18.2.2022, police reached in the house of Takdir and recovered the victim. At that time, victim did not disclose anything about her forcible violation but, lateron, she disclosed it with further information that petitioner and his father had been preparing documents of marriage. According to complainant, at the time of lodging the report, she was not knowing exact date of birth of victim and, therefore, she mentioned her age as 18 years in the missing report.

In her statement, recorded under Section 161 Cr.P.C., victim has reiterated the statement made by complainant, but adding therein that she was taken to the Gurudwara in an Auto-rickshaw and, thereafter, petitioner and his father asked her to accompany them to Haryana on the pretext of showing their house, on which they hired a Taxi HP-17D-9264, driver whereof was one Rakesh, and by alluring her, made her to board the said vehicle and took her to their village and prepared documents of marriage and on 16.2.2022 she was forcibly violated by Takdir.

Learned counsel for the petitioner has placed on record certificate and affidavits sworn-in by the victim, whereupon not only signatures but thumb impression has also been taken. Further that, identity of the victim, disclosed to them, was ‘Arti’ daughter of Sunder Singh, whereas true identity of victim now came in light is ‘X’ daughter of Inder Singh but not ‘Arti’ daughter of ‘Sunder Singh’ and date of birth of victim was disclosed to them as 1.2.2000 and, thus, considering her major, marriage of Takdir and Arti was solemnized in Sarv Samaj Marriage Mandal on 16.2.2022 with consent of the victim, who was sent by her sister with her consent to marry Takdir by disclosing age of victim as 18 years and this fact is also substantiated from the contents of missing report dated 15. 2.2022. It has been further submitted that on the affidavits sworn-in by the victim not only her signatures but her fingerprints/thumb impressions were also taken to ensure that victim herself signed and sworn the affidavit and further that in case petitioner and his family would have any bad intention to violate the victim, then marriage of victim and Takdir in Sarv Samaj Marriage Mandal would not have been solemnized to avoid creation of record of marriage. The petitioner has also placed on record certificate of solemnization of marriage issued by Sarv Samaj Marriage Mandal.

It has been further submitted on behalf of the petitioner that as a matter of fact petitioner and his family has been cheated by the complainant and her family by trapping them with the help of victim and they have been implicated in a false case. Whereas, behavior of family of the petitioner was innocent as they took the victim with consent of her family and solemnized marriage with her and the victim started living in their village, but the behaviour and conduct of the complainant party is suspicious which, despite knowing everything, lodged missing report of the victim only and took the Himachal Police to the native village of the petitioner in Haryana by leveling false allegations. It has been submitted the learned counsel for the petitioner that had the complainant not knowing about sending, going and presence of victim with petitioner and his family, there was no occasion for her to lead the police party to the village of Takdir for recovering the victim. According to him, present case has been registered for blackmailing the petitioner and his family by trapping them.

Learned counsel for the petitioner has submitted that the petitioner is permanent resident of the State of Haryana having landed property in his village and there is no possibility of his fleeing from justice. He has further submitted that in case of enlargement of the petitioner on bail, the petitioner is ready to furnish bonds to the satisfaction of the trial Court and to abide by any condition which may be imposed by the Court.

Learned Additional Advocate General has opposed the bail on the ground that the petitioner has committed a heinous crime against a minor by kidnapping her from Paonta Sahib, preparing false documents of solemnization of marriage and violating her forcibly.

Taking into consideration, the entire facts and circumstances, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case, at this stage.

Accordingly, the petition is allowed and petitioner is ordered to be released on bail in case FIR No.43 of 2022, dated 19. 2.2022, registered in Police Station Paonta Sahib, District Sirmaur, Himachal Pradesh, on his furnishing personal bond in the sum of `1,00,000/- with one surety, in the like amount, to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of petitioner/accused at the time of trial:

(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.

(iii) that the petitioner shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iv) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

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

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

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

(viii) that in case petitioner indulge in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(ix) that the petitioner shall not leave the territory of India without prior permission of the Court; and

(x) that the petitioner shall inform the Police/ Court her contact number and shall keep on informing about change in address and contact number, if any, in future.

It will be open for 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 and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition 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.

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.

Petition is disposed of in aforesaid terms.

Copy dasti.

Parties are permitted to produce copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned/trial Court, and the said authorities/Court shall not insist for production of a certified copy, however passing of the order may be verified from the website of the High Court or otherwise.

Petition stands disposed of in the aforesaid terms.