Himachal Pradesh High Court
Amit Sharma vs State Of Himachal Pradesh on 31 May, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P. (M) Nos. 154 of 2023, 173 of
.
2023 &1137 of 2023
Date of decision: 31.5.2023
1. Cr.M.P. (M) No. 154 of 2023
Amit Sharma. ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
2. Cr.M.P. (M) No. 173 of 2023
Anant Ram. ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
3. Cr.M.P. (M) No. 1137 of 2023
Ramesh Kumar. ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner(s). Mr.Mehar Chand, Mr.Bhupinder Singh Ahuja,
Ashok Kumar and Ms.Madhurika Sekhon
Verma, Advocates.
For the Respondent: Mr.Rakesh Dhaulta, Additional Advocate
General.
Vivek Singh Thakur, Judge (Oral)
Petitioners have approached this Court, seeking regular bail under Section 439 Cr.P.C. in case FIR No. 66 of 2021, dated 20.5.2021, registered in Police Station Reckong Peo, District Kinnaur, H.P. under Sections 363, 366A, 376, 376D, 120B of the Indian Penal Code (in short "IPC") and Sections 6 and 17 of the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO Act").
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 2 Cr.M.P. (M) No. 154 of 2023 & connected matters
2. Status Report stands field. Record was also made available. Statements of PW-1 Father of victim, PW-2 Child Victim, PW-3 mother of victim, PW-4 brother of victim, PW-7 stepmother of victim and PW-13 .
Secretary Gram Panchyat, recorded in the Court have also been placed on record.
3. As per status report on 20.5.2021, on the basis of complaint submitted by father of victim in Police Station, FIR was registered, whereby complainant had reported that on 19.5.2021, his daughter X, (victim) aged 14 years was in the room till 3:30 P.M. alongwith her brother. At that time, he and his wife were not at home. After receiving a phone call from Vinod and Ankush on mobile phone of her girl friend, his daughter went out of the room after writing a note on a page of her copy. His daughter was not having phone, however sometimes she was possibly, using the phone of her brother. He expressed probability of kidnapping of his daughter by Vinod and Ankush by calling her through mobile phone of Disha, as his daughter was not traceable.
4. After registration of FIR, investigation was initiated and location, CAF and CDR of suspected persons, who were in contact of victim, were obtained. On the basis of location traced on surveillance, Police Party went to Shimla in search of victim and on the basis of that victim was recovered from Bangora in Ghanahatti area on 21.5.2021 and Anant Ram, the person with whom victim was found at the time of her recovery, was also detained and taken to Rekongpeo for interrogation.
5. On 22.5.2021, statement of victim was recorded in presence of her mother, wherein she disclosed forcible violation of her person by accused and other persons and, therefore, her medical examination was conducted and MLC was obtained after preserving samples, for chemical analysis. In ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 3 Cr.M.P. (M) No. 154 of 2023 & connected matters MLC, violation of person of victim was confirmed. Apart from Anant Ram, Ankush and Vinod were also detained and on finding sufficient ground for their arrest, they were arrested during night of 22-23rd May, 2021 and were .
subjected to medical examination and their MLCs and preserved samples were obtained for chemical analysis.
6. Statement of victim was also recorded under Section 164 Cr.P.C before the Magistrate.
7. As per status report, on 19.5.2021, Vinod Nepali through mobile phone call, called victim to Pick-Up stand Rekong Peo and made her to sit in vehicle of Ankush wherein alongwith Ankush, another boy Jai Bahadur, a child in conflict with law, was also in the vehicle. Ankush was consuming beer. As per status report, victim disclosed that Ankush and Vinod forced her to consume beer and thereafter Ankush alone took victim on the Pangi road towards jungle and violated her in the jungle and thereafter dropped her on Pick-Up stand Reckong Peo. Thereafter, when Vinod and Jai Bahadur (JK), were taking the victim in vehicle of Vinod towards Talangi, a girl friend of victim informed victim on mobile phone of Vinod that her family was searching for her. Her friend had also supplied mobile number of Vinod to parents/guardian of victim, but Vinod did not pick up their call and switched off his phone and brought the victim back and dropped her and JK (Jai Bahadur @ Jai Krishan) near PNB Reckong Peo and went away by asking them to go on foot by saying that he would be coming after parking the vehicle, but he did not come.
8. As per status report, Jai Bahadur (JK) took victim to quarter of his friend and violated her there and thereafter violated her throughout the night in a newly constructed building and then asked the victim to go home ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 4 Cr.M.P. (M) No. 154 of 2023 & connected matters quietly through short cut by advising her not to tell violation of her person by him even on beating by parents.
9. It is further case of the prosecution that thereafter victim started .
towards Shimla on foot, as her one friend Sohan Singh was residing there. When she reached Ralli, a car stopped near her and car driver (petitioner) asked about her destination. On her disclosure, car driver offered lift by saying that he was also going to Shimla. Victim sat in the Car and laid on back seat covering her with bed sheet. On the way Police, on checking, inquired about the destination and the identity of person sleeping on the back seat. The Car driver told them that she was his ailing niece (Bhanji), i.e. sister's daughter, and they were going to Shimla for her treatment. On reaching near Rampur, in a forest area, Car driver stopped his vehicle. After some time, a truck came there, driver whereof was known to Car driver. Car driver told her that truck was also going to Shimla and asked her to travel in the truck as on the way there might be Police. Apart from truck driver, one more person was also in the truck. There was a curtain on the back seat of the truck and occupants of truck asked her to sleep on that seat behind the curtain and Maruti Car driver also followed the truck. At about 3-4 P.M., at a place unknown to victim, truck was stopped. Car driver also halted there and came inside the truck. Occupants of truck went out. The Car driver violated her and went out and thereafter truck driver violated her and sat on driving seat. Thereafter, another person came in and truck moved and Maruti Car also followed them and at about 7-8 P.M., they reached Ghanahatti where truck driver shifted victim to Maruti Car and truck driver also accompanied them and after some distance they dropped her in front of a rain shelter by saying that she will get lift for Shimla from that place. After 10-15 minutes thereafter, a car with two occupants came from Shimla side and stopped there ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 5 Cr.M.P. (M) No. 154 of 2023 & connected matters because quarter and shop of car owner-driver Anant Ram was at that place and other person was his helper in the shop. Anant Ram inquired victim about reason for her presence in night hours. On disclosing her intention to go to .
Shimla, Anant Ram advised her to accompany him to his room with assurance to drop her at Shimla on next morning. Victim refused to accompany him, but asked for his mobile to make a call to her friend, but Anant Ram did not give mobile by advising to stay in his room as in that forest area, during night, she may be harmed by wild animals, snakes etc. Victim accompanied Anant Ram along with another person.
r Anant Ram, after leaving both of them in the room, went out to bring food. Thereafter, she and helper had meals, but Anant Ram did not. There were two rooms and kitchen. Helper slept in adjacent room whereas victim slept in outer room. After some time Anant Ram came in outer room and slept with her and violated her twice. She tried to stop him, but as she was tired she could not stop him. At 5:00 A.M. victim and Anant Ram woke up and from his mobile she called her friend Sohan Singh, who told that he was at Mandi and she disclosed him that she was at Ghanahatti. Whereupon Sohan Singh told her that he would be making arrangement for her by sending his friend to Ghanahatti. After some time, Anant Ram received a call informing him that Police was tracing his number, whereafter Anant Ram asked the victim to leave the place and victim started to Shimla. After five minutes a Police vehicle came and inquired her and took her in the said vehicle to Police Station, Shimla West (Boileauganj) where victim disclosed entire story to the Police. At that time her maternal uncle Luckey, studying at Shimla, had reached there. Her father had also reached Shimla during previous night alongwith Police.
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10. In her statement recorded under Section 164 Cr.P.C., victim stated that she was not violated by Vinod and Ankush, but they left her at Pick-Up stand after meeting her and Jai Bahadur alias Jai Krishan (JK), Car .
driver, truck driver and Anant Ram had violated her and another person sitting in the truck did not commit any objectionable act with her.
11. On the basis of date of birth, copy of Parivar Register, age of victim, on the date of incident, was found 14 years, 5 months and 8 days.
12. In chemical analysis report, human semen was detected on salwar, shirt, vaginal swabs, vaginal slides, cervical slides, urethral slides, anal swabs of victim, sweater of Ankush, pants of Jai Krishan @ JK, mattress cover, blanket, swab from plywood-II, scraping from plywood-II, bed sheet and blanket.
13. During investigation, on 24.5.2021, Car and truck were taken into possession and Car driver Ramesh and truck driver Amit were arrested and subjected to medical examination and samples were preserved for chemical analysis. On the same date victim identified the place where Ankush had violated her and on that place a used condom alongwith wrapper was also recovered and taken in possession. Victim had also identified the place where she was violated by Jai Krishan and a blanket was also taken into possession from that room. On identification by victim, mattress was also taken in possession from the residence of Anant Ram.
14. During investigation, on the basis of date of birth certificate and copy of parivar register, age of Jai Krishan alias J.K. was found to be 14 years, 3 months and 28 days. After interrogation and Medico Legal Examination, his custody was handed over to his brother Rakesh Kumar. Jai Krishan admitted commission of offence and after producing before Principal Magistrate, Juvenile Justice Board, Rampur, he was sent to Child Reform ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 7 Cr.M.P. (M) No. 154 of 2023 & connected matters Home, Shimla. He was enlarged on bail on 7.6.2021 by Principal Magistrate Juvenile Justice Board.
15. As per DNA profiling report, two mixed autosomal STR DNA .
profiles were obtained from body and salwar of victim. Components of foist mixed profile obtained from salwar of victim were consistent with DNA profiles of Anant Ram, Jai Krishan and Amit Sharma. Components of second mixed profile obtained from salwar of victim were consistent with DNA profile of Jai Krishan, Ramesh Kumar and Amit Sharma.
16. From the mixed autosomal STR DNA profile obtained from shirt of victim two DNA profiles could be identified. Of these two DNA profiles, one DNA profile matched completely with DNA profile of Anant Ram and other DNA profile was consistent with DNA profile of Jai Krishan. Similarly DNA profile obtained from vaginal swabs of victim matched completely with DNA profiles of Anant Ram as well as Jai Krishan. DNA profiles of another vaginal swab of victim were also consistent with DNA profiles of Anant Ram and Jai Krishan. DNA profile obtained from anal swab, swab from plywood-II, scrapings from plywood-II, matched completely with DNA profile of Jai Krishan. An identical autosomal STR DNA profile obtained from bed sheet and blanket matched completely with DNA profile of Amit Sharma. Nothing specific could be inferred from DNA profiles obtained from blankets, cervical slides, virginal slides and urethral slides of victim yielded highly degraded DNA which did not show amplification Global Filer and Y Filer Plus DCR Amplification kits.
17. Bail petition Cr.M.P. (M) No. 1053 of 2022 filed by Amit Sharma was dismissed as withdrawn on 27.7.2022. Bail petitions Cr.M.P. (M) Nos. 1348 of 2022 and 2315 of 2022 filed by Anant Ram were dismissed as withdrawn on 25.8.2022 and 15.12.2022, respectively. Bail application ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 8 Cr.M.P. (M) No. 154 of 2023 & connected matters Cr.M.P. (M) No. 2353 of 2022 filed by Ramesh Kumar was dismissed on merits vide order dated 4.1.2023.
18. Learned counsel for the petitioners submit that at the time of .
dismissing Cr.M.P (M) No. 2353 of 2023, the Court had taken into consideration material related to the occurrence of incident and evidence related thereto including DNA profile matching of some of accused persons with DNA profile obtained from vaginal swab and clothes of victim alleged to be taken into possession by Police at the time of medical examination of victim, but issue related to date of birth and age of victim and impact thereof was not considered at that time and, therefore, in spite of rejection of plea of Ramesh Kumar on merit for enlarging him on bail on other grounds discussed in the said judgment, petitioners including Ramesh Kumar are entitled to file these bail applications on new ground that age of victim, as proved by prosecution witnesses itself, appears to be more than 18 years at the time of alleged occurrence and, therefore, rigors of provisions of POCSO Act will not to be applicable in present case, rather conduct of victim which is appearing to be consensual, would be more relevant for considering bail applications of petitioners.
19. Learned counsel for the petitioners to substantiate claim of petitioners to enlarge them on bail has referred statement of father of victim examined as PW-1, wherein in examination-in-chief it has been stated that age of child victim is 19 years, meaning thereby that age of victim at the time of incident was more than 18 years. Father of child victim has further stated that in the school record her date of birth was recorded some months lesser than the actual date of birth, and further stated that at the time of his marriage with sister of mother of child victim, the mother of the child victim was pregnant from his alliance and child victim was born on 12.2.2003, but her ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 9 Cr.M.P. (M) No. 154 of 2023 & connected matters date of birth was not recorded at that time because his legally wedded wife was not agreeing to record the entry of the child victim by incorporating him as father of child victim. According to father thereafter after 3 years, mother of .
child victim started living with him as his legally wedded wife whereafter, after some time, he got the date of birth of child victim recorded in the record and at the time of admitting the child victim in the school, her date of birth was reduced as advised at that time. Father has further stated that at the time of reporting the matter to the Police, the age was disclosed on the basis of entry of record, but not on the basis of actual date of birth of the victim.
20. Learned counsel for the petitioners have also referred statement of child victim, who, in her cross-examination, has stated that at the time of lodging FIR, she was more than 18 years of age with further statement that her correct date of birth is 12.2.2003 and that she has given statement under Section 164 Cr.P.C. at the instance of Police and her statement was recorded by Police on its own, but not according to her version.
21. Statement of PW-3 mother of victim has also been referred on behalf of petitioners, wherein she has stated that she solemnized marriage with Sunil Kumar, i.e. father of victim in the year 2002 and out of this wedlock child victim was born on 12.2.2003 and child was living with her father. She has further stated that in the year 2021 her daughter was of more than 18 years and her name was got registered in Panchyat record by her father and that she had become pregnant prior to her marriage and after 20 days of birth of her daughter she went to her parents house. Further that she solemnized second marriage in the year 2017 as her first marriage was not solemnized as per rituals and she had started residing with Sunil Kumar directly. In cross- examination, she has further stated that Dev Kumari is her sister and Sunil Kumar had solemnized marriage with Dev Kumari and that time she was ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 10 Cr.M.P. (M) No. 154 of 2023 & connected matters pregnant and about to become mother of Sunil's child. Out of wedlock of Devi Kumari and Sunil Kumar two other children have born.
22. Reference has also been made by learned counsel for the .
petitioners to the statements of step mother of victim recorded as PW-7 and Panchyat Secretary Laxmi examined as PW-13.
23. Learned counsel for the petitioners submit that entry of date of birth relied upon by the prosecution has also become doubtful not only for the statement of victim, her mother, father and step mother, but also for the deposition of PW-13 Laxmi (Panchyat Secretary), who, in her cross- examination, has admitted that in original family register there were some other names in the column of name of victim and after that the name of victim was entered and other name was not readable because there was cutting in the said column with further deposition that on perusing the original family register it could not be said that as to when the said entry was made because she was custodian of register at the time of deposition and there was no signature of anybody on the relevant page of the family register. Her admission that basis of entry in the register cannot be ascertained from the original family register has also been referred. It has been contended that veracity of the entries of the family register, in the light of statement of PW-12 Laxmi, were also neither argued nor considered in the previous bail application.
24. It has further been submitted on behalf of petitioners that fact of the denial of victim about her medico legal examination, seizure of clothes and the impact thereof on the Forensic Science Laboratory Report were also not considered.
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25. It has further been stated by learned counsel for the petitioners that co-accused Vinod Kumar has been enlarged on bail vide order dated 5.5.2022 passed by learned Additional Sessions Judge Fast Track Court .
(POCSO Court) Kinnaur. Further that, co-accused Ankush has also been enlarged on bail by this Court vide order dated 29.8.2022 passed in Cr.M.P. (M) No. 1054 of 2022.
26. Learned Additional Advocate General has submitted that evaluation and assessment of the evidence is to be undertaken by the Trial Court at the time of conclusion of trial and, therefore, plea raised by the learned counsel for the petitioners qualifying the evaluation of evidence on merits is not desirable in these applications for considering their prayer to enlarge the petitioners on bail.
27. Learned Additional Advocate General has submitted that apart from oral evidence, there is sufficient material against the petitioners to establish their involvement in commission of a heinous crime against a minor about 14 years punishable under Section 6 of POCSO Act for which sentence of 10 years to imprisonment of life has been provided. He has submitted that traveling of victim in the car of petitioner Ramesh Kumar has been duly established by CCTV footage and during that period petitioner Ramesh Kumar had contacted petitioner Anant Kumar (truck driver). From CCTV footage of Police barrier Chaura, it has been confirmed that truck and car were moving at a small distance of each other and call detail record has established contact between petitioners Ramesh Kumar and Amit Sharma (truck driver) at that time. Later on victim was recovered from Ghanahatti area. This fact coupled with result of DNA profiling obtained from virginal slides, vaginal swab and swabs and slides of urethra as well as DNA profile ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 12 Cr.M.P. (M) No. 154 of 2023 & connected matters obtained from salwar of victim clearly established connivance of petitioners Ramesh Kumar and Amit Kumar for violation of child victim.
28. It has been further submitted that evidentiary value of hostile .
witnesses alongwith other material on record is yet to be considered by the trial Court and, at this stage, it cannot be construed that there is every likelihood of acquittal of accused persons including petitioners.
29. Learned counsel for the petitioners have submitted that even if allegations of violation of person of victim are taken to be true on the basis of evidence placed on record, then also there is sufficient positive evidence on record in the statements of prosecution witnesses, not anybody else but of the victim as well as her parents indicating that at the time of incident victim was more than 18 years of age. It has been contended that it is not a case where victim and her family is claiming that child victim was minor and contrary evidence has been led by the accused persons to controvert the same, but it is a case where prosecution witnesses, that too victim and her parents, have categorically stated in their examination-in-chief that victim at the time of incident was more than 18 years of age. Therefore, it has been contended that for the doubt created by the prosecution witnesses themselves regarding the age of victim, case of prosecution that victim was minor at the time of incident has been diluted and, no doubt, entire evidence is to be appreciated and assessed by the Trial Court to arrive at conclusion in this regard, however, in the light of above evidence from the mouth of victim and her family, at least a case for enlarging petitioners on bail is made out because in case, at the end of the trial if it is concluded that victim was more than 18 years of age then, even if incident is proved the entire alleged incident would be a result of consensual participation of victim, because in prosecution story it has come that at the time of checking by the Police, when victim was ::: Downloaded on - 01/06/2023 20:31:46 :::CIS 13 Cr.M.P. (M) No. 154 of 2023 & connected matters traveling in car, she pretended her to be ailing niece of car driver, which indicates that she was not forcibly taken to anywhere and thus the deposition of the victim and her family with regard to her age, such consent of victim is .
also a material fact in favour of petitioners, at least, for enlarging them on bail. Thus, it has been prayed to enlarge the petitioners on bail, at this stage, who have already suffered detention for sufficient period after their arrest.
30. It has been further stated by learned counsel for the petitioner that co-accused Vinod Kumar has been enlarged on bail vide order dated 5.5.2022 passed by learned Additional Sessions Judge Fast Track Court POCSO Court Kinnaur. Further that in absence of matching of DNA profiling of petitioners with any DNA profiling obtained from clothes, virginal slides, vaginal swab and other samples, presence of semen on sweater of petitioner Ankush is not indicating or linking commission of offence by petitioners.
31. Learned Additional Advocate General has submitted that petitioners are involved in commission of a heinous crime against minor girl and, therefore, are not entitled for bail.
29. Without commenting upon merits of the case, but taking into consideration material placed before me and taking note of factors and parameters required to be considered at the time of adjudication of bail as propounded by the Courts including the Supreme Court, I am of the considered opinion that at this stage petitioners may be enlarged on bail.
32. Accordingly, petitioners are ordered to be enlarged on bail on furnishing personal bond in the sum of 1,00,000/- each with one surety each in the like amount, to the satisfaction of 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 assure presence of the petitioners at the time of trial:-
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(i) That the petitioners shall join the investigation and attend the Court as and when directed to do so by the Investigating Agency/Court;
.
(ii) that the petitioners 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. They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected;
(v) that the petitioners shall not misuse their liberty in any manner;
(vi) that the petitioners shall not jump over the bail;
(vii) that the petitioners shall keep on informing about the change in address, landline number and/or mobile number, if any, for their availability to Police and/or during trial;
(viii) the petitioners shall not leave India without permission of the Court.
33. 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, enlarged on bail, 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.
34. In case the petitioners violate any conditions imposed upon them, their 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.
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35. 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.
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36. 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.
37. The parties are permitted to produce copy of order downloaded from the High Court website and trial Court shall not insist for certified copy of the order, however, he may verify the passing of order from the High Court website or otherwise.
The petitions stand disposed of in the aforesaid terms.
(Vivek Singh Thakur), st 31 May, 2023 Judge.
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