Vivek Singh Thakur, J
1. Petitioner has approached this Court, invoking provisions of Section 439 Code of Criminal Procedure (for short Cr.P.C.) for enlarging him on bail in
case FIR No.64 of 2022, dated 28.7.2022, registered in Police Station Jhakri, District Shimla, Himachal Pradesh, under Sections 376AB, 506 of the
Indian Penal Code (IPC) and Sections 4&8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
2. Status report stands filed. Record was also made available. Petitioner has also placed on record photographs to claim and substantiate love and
affection between him and the victim.
3. As per prosecution case, on 28.7.2022, complainant (mother of victim and wife of petitioner) submitted an application in Police Station Jhakri,
stating therein that her marriage was solemnized with petitioner in the year 2016 and as she was the only child of her parents, she and her husband
(petitioner) used to live in her parental house. On 4.5.2022, petitioner suddenly quarreled with complainant and left the house and since then she was
taking care of her children. As per complainant, her 4½ years old daughter was afraid and was complaining pain in her stomach and also in her
private parts and legs and, thus, she took her daughter to private hospital at Kumarsain and Sanjeevni Hospital Chuha Bhag where medicine was
prescribed to her daughter. Victim was too much afraid that she expressed that she would not talk with her father and asked not to bring him home by
saying that her father was dirty, whereupon complainant asked her daughter politely why she (victim) was afraid too much of her father, whereupon
victim told her that whenever her father used to drop her in school in the vehicle, he used to tease her by putting his finger in her vagina as well as in
her mouth deep to the throat and used to beat her, and whenever she cried her father threatened her to throw her in forest by saying that there lion
would eat her. On knowing all these facts, complainant checked vagina of her daughter (victim) and noticed too much swelling and redness there,
whereupon her suspicion became belief that petitioner had spoiled her daughter.
4. On the basis of aforesaid allegations, stated in the complaint, FIR was registered and victim was sent for medical examination in MGMSC Khaneri,
wherefrom she was referred for opinion of Specialist Gynaeocologist at DDU Hospital Shimla. Statement of victim was also recorded under Section
164 Cr.P.C.
5. As per Status Report, during interrogation, petitioner disclosed that in the month of December his newly born son suffered jaundice and, for his
treatment, the couple visited Khaneri Hospital, where petitioner came in contact of a woman and his wife (complainant) noticed it and thereafter
quarrels started between husband and wife, even on trivial issues, and petitioner left his in-laws house situated at Jhakri on 2.5.2022 and went to his
parental place in village Kanda and in this regard his wife, i.e. complainant, submitted written complaints in Police Station Jhakri on 3.5.2022 and
22.5.2022.
6. Petitioner was arrested pm 31.7.2022 and subjected to medical examination and since 1.8.2022 he is in judicial custody.
7. Statement of victim, under Section 164 Cr.P.C., was recorded on 29.7.2022, wherein victim has stated that her father was lodged in jail by the
police because he and his friend had inserted finger in her private part when she was at home. Thereafter, her statement was also recorded under
Section 161 Cr.P.C. on 31.7.2022, wherein she has reiterated that her father and her uncle, who remains in shop, inserted finger in her private part in
a room at the residence.
8. Applications dated 3.5.2022 and 22.5.2022, submitted by the complainant have also been placed on record, which were entered in Daily Diary at
GD No.17 dated 3.5.2022 and GD No.14 dated 22.5.2022, in Police Station Jhakri.
9. In complaint dated 3.5.2022, it was stated that the complainant delivered a male child on 16.12.2021 and, on 20. 12.2021, her newly born baby,
suffering from jaundice, was taken to the hospital where another lady, who had come for treatment of a baby, came in contact of petitioner when after
keeping the child in incubator, complainant was sent to a room for taking rest and when after two hours she came back to feed her child she noticed
considerable change in the activities of her husband and that lady indicating too much closeness and their behaviour of interaction, including touching
each other, created suspicion, and due to that the complainant wept bitterly and also tried to impress upon her husband to mend his ways but he did not
pay heed and every day he was found talking with someone on mobile, as whenever she rang him his mobile phone was found busy and petitioner also
used to delete his call details from mobile. She has further stated in the complaint that she searched the mobile phone of her husband and found
objectionable material but petitioner did not accept his mistake, and further that mobile phone number of the lady has been saved by her husband
(petitioner) in a fake name and when she called on that mobile number, the call was replied by a lady and complainant believed that the lady was the
same who met her husband in the hospital and, thus, her husband was in extramarital affair. Police entered the complaint in the Daily Diary and took
further steps for obtaining mobile phone call details to resolve the issue.
10. On 22.5.2022, complainant again approached the police with complaint complaining threat extended by her husband to her, stating in the complaint
that seven days ago she had come to the Police Chowki (Station) Jhakri twice and lodged complaint against her husband but no action had been taken
thereon and since 9.5.2022 petitioner was extending threats to her on her mobile phone expressing his intention to live at Jhakri alongwith her, and if
not permitted, then to commit suicide, whereas at Jhakri in presence of parents of both sides and police officials, it was agreed that both of them shall
live separately in their own respective houses. Further that, complainant was committed to her statement to live separately and in case petitioner took
any step then she would not be responsible for that as he himself fled from home because the complainant had discovered relations of petitioner with
other lady. Further that she was living with her mother, looking after the children but was disturbed because of blackmailing, falsehood and threat to
commit suicide being extended by the petitioner and in any eventuality she would not like to spoil the future of children in any manner.
11. During medical examination, victim as well as complainant, complained to the Doctor about injury to the vagina of victim by finger of her father
(petitioner), further disclosing alleged beating, slapping, putting plastic and finger in mouth of victim causing choking her throat, throwing her in pit
(Gadda), with further allegations of multiple episodes of physical assaults by her father on multiple occasions, alleging last assault on 4.5.2022, leading
to swelling and itching in as well as whitish intermittent discharge from vagina. The Doctor, after examining the child, opined that there was no local
evidence of recent sexual act, however, possibility of remote sexual act could not be ruled out.
12. Learned counsel for the petitioner submits that strained relations between the husband and the wife are matter of record and wife was filing
complaints against the husband since 3.5.2022 and according to the complaints, petitioner had left Jhakri on 4.5.2022 and since then the children,
including the victim, were in custody of the mother and till July 2022 no such incident was complained by the victim to her mother despite the fact that
her father was not there and, therefore, there was no fear to the victim to afraid from her father and that the child may have sustained injury or may
be suffering from disease leading to pain and swelling in the vagina, which has been made a tool by the complainant to settle her score with the
petitioner. Further that in the complaint, it was reported that victim informed her mother (complainant) that whenever her father used to drop her in
school in vehicle he used to tease her by putting his finger in her private part as well as throat with threat that in case of complaint he would throw her
in the forest, but in her statement under Section 164 Cr.P.C. victim has stated that her father was in Jail for committing the above referred act with
her, whereas, as a matter of fact, on that day the petitioner was not in jail, and further that in the said statement place of incident, instead of vehicle,
has also been shifted to the room in the residence with further allegations that a friend of petitioner was also involved in doing so. In statement, under
Section 161 Cr.P.C., commission of offence in the room has been reiterated. Lastly, it has been submitted that at the time of medical examination,
further allegations which were never complained earlier have also been reported to the Doctor which have been reproduced by the Doctor in the
MLC. Further that, 4½ years old victim was attending school regularly and for that purpose she was taking bath and dressing up with the help of
mother and in case the allegations leveled against the petitioner would have been true, then complainant, being mother of victim, had definitely noticed
swelling and injury to vagina of victim.
13. Learned counsel for the petitioner, referring opinion of the Doctor, has also contended that the medical report also substantiates innocence of the
petitioner.
14. Certain photographs have also been placed on record by the petitioner, claiming these photographs of a Temple, taken on 25th/26th July, 2022,
when families of both sides had a meeting with each other in the Temple for negotiations to resolve the dispute and at that time victim had met with
the petitioner with love and affection for her, as appearing in the photographs placed on record, but on that day the matter could not be resolved which
led to filing of complaint against the petitioner on 28.7.2022 to settle the score.
15. It has also been submitted that the child has been tutored and brain washed by telling her false story by creating impression of commission of
offence in the mind of the child. It has further been submitted that it is highly unbelievable that for act committed on or before 4.5.2022, child
continued to suffer without reporting it to the mother, whereas mother was taking care of the 4½ years old girl child everyday by performing day-to-
day affairs, including bath, passing of stool, dressing for school and after school, but despite that she could not notice the swelling and redness in the
private part of the small kid and the child was also not complaining any problem but suddenly in the month of July 2022, the child disclosed the entire
story and the mother also noticed injury to the private part of the child.
16. Learned Additional Advocate General has submitted that the petitioner has been found involved in commission heinous crime, as is evident from
statements of the victim and, therefore, petitioner does not deserve to be enlarged on bail. Therefore, grant of bail has been opposed vehemently.
17. Taking into consideration the entire facts and circumstances, but, without commenting on merits of the rival contentions of the parties, and taking
into account factors and parameters, as propounded by the Courts, including Supreme 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.
18. Accordingly, the petition is allowed and the petitioner is ordered to be released on bail, on his furnishing personal bond in the sum of Rs.50,000/-
with one surety in the like amount to the satisfaction of 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 petitioners/accused at the time of trial and also subject to following further
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,
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. He 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 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 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.
19. 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 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.
20. 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.
21. 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.
22. Observations made hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.
23. The parties are 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, it may verify the order from the High Court website or otherwise.
Petition stands disposed of in the aforesaid terms.
