Seema Verma vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner is a lady aged 28 years and mother of the victim girl child. She alongwith one Sunil Kumar alias Bobby have been accused of offences under Section 376 of the Indian Penal Code and Section 4 & 17 of the Protection of Children from Sexual Offences (POCSO) Act and Section 75 of Juvenile Justice Act in FIR No. 77/2021, registered on 04.05.2021 at Police Station Theog, District Shimla. She is in custody w.e.f. 04.05.2021. By means of this petition, petitioner seeks her enlargement on regular bail.

I have heard learned counsel for the parties and gone through the status report as well as perused the records produced today by the respondent‐ State.

3 Briefly the prosecution case is that: a complaint was made on 04.05.2021 by the father of the victim girl child, stating that his marriage was solemnized with the petitioner about eight years ago. The couple was blessed with a daughter, who is presently aged six years. Matrimonial discord developed between the couple and they started living separately from each other. Daughter lived with her mother i.e. the petitioner. On 03.05.2021, complainant received a phone call from his brother-in-law, informing him that his daughter was beaten up and was at her maternal uncle’s

(Mama) place in Theog. Complainant thereafter rushed & brought his daughter to his place at village Chamech. It was further alleged by the complainant that while changing her daughter’s clothes, he noticed various injuries marks all over her body. He, thereafter, took her to the hospital, where the medical officer allegedly opined that the girl child was beaten up and raped. Upon complainant’s questioning, his daughter stated having been beaten up by one ‘Bobby Bhaiya’ and also stated that the said person had committed wrong acts with her. On the basis of these allegations, aforesaid FIR was registered on 04.05.2021.

During investigation, statements of the girl child as well as the complainant were recorded. According to the status report, the MLC of the girl child was obtained, as per which swelling was found on her private parts, which also bore rubbing and injury marks. As per the status report, one Sunil alias Bobby had molested the victim girl child. He was also alleged to have raped and beaten her inter alia using a charger. All these acts by accused Sunil are reported to have been carried out in presence of victim’s mother i.e. the petitioner. On the basis of the aforesaid allegations, petitioner was arrested on 05.05.2021.

Learned counsel for the petitioner submitted that the petitioner is the mother of the victim girl child involved in the FIR. She cannot even think of committing the cruelty attributed to her in the FIR. Learned counsel further submitted that the complainant and the petitioner are having estranged relations and living separately from each other. Petitioner has filed a complaint against her husband (complainant) under the Domestic Violence Act, which is pending adjudication before the competent authority. Learned counsel referred to the statements of the girl child recorded under Section 161 and 164 of the Code of Criminal Procedure and exhorted that no case alleged in the FIR is made out against the petitioner.

Learned Additional Advocate General, while opposing the bail plea of the petitioner submitted that the petitioner is accused of committing serious offences against her own daughter. However, in case the Court is inclined to grant bail to her then the same be made subject to stringent conditions, including directing the petitioner to continue to cooperate and join the investigation as and when directed by the investigating agency and not to threaten or intimidate the victim.

Though status report mentions about the molestation, rape and beating up of the girl child by the accused Sunil Kumar alias Bobby in presence of her mother i.e. bail petitioner, however, a perusal of the record gives a different picture. In her statement recorded under Section 161 Cr.PC on 04.05.2021 and Section 164 Cr.PC on 5.5.2021, no such allegations have been levelled by the girl child against her mother/ petitioner. There is no allegation that acts as alleged in the complaint were committed by accused Sunil Kumar in presence of petitioner. Allegations levelled by the victim are against the accused Sunil Kumar alias Bobby. Statement of the father of the victim i.e the complainant was also recorded under Section 164 Cr.PC on 05.05.2021. There also no such allegations have been levelled against the petitioner. It is only in the report prepared after the child counselling on 09.05.2021 that involvement of the petitioner has been mentioned. However in my considered opinion, the said report at this stage cannot be given credence over & above the statements of the girl child recorded on 04.05.2021 and 05.05.2021 under Sections 161 and 164 Cr.PC respectively.

Without going much deeper into the evidence at this stage, lest it causes prejudice to the case of either parties, I am of the considered opinion that further incarceration of the petitioner is not warranted in the facts and circumstances as they have come on record as a result of the investigation.

Main accused is one Sunil Kumar alias Bobby. Case of petitioner stands on different footing. The girl child is residing with her father w.e.f.

03.05.2021. Her tutoring in the hands of her father, who is having strained relations with his wife/petitioner cannot be ruled out at this stage.

Considering over all aspects, I am inclined to grant bail to the petitioner. Since, the investigation is statedly going on, therefore, petitioner is directed to join and to cooperate the investigation as and when directed by the investigating agency. Petitioner has no criminal antecedent. She is permanent resident of village Chamech, P.O. Jais, Tehsil Theog, District Shimla, therefore, her presence can be secured in the trial. This bail application is accordingly allowed. Bail petitioner is ordered to be released in the above mentioned FIR, subject to her furnishing personal bond in the sum of Rs.50,000/with one local surety in the like amount to the satisfaction of the learned trial Court having jurisdiction over the concerned Police Station, subject to the following conditions:​

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. However she shall not be called in the police station before 9.00 A.M. and after 5.00 P.M;

(ii). Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever;

(iii). Petitioner will not leave India without prior permission of the Court;

(iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer. Bail petitioner shall not directly or indirectly threaten or intimidate the girl child in any manner whatsoever;

(v). In case of launching of prosecutor, the petitioner shall attend the trial on every hearing, unless exempted in accordance with law;

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, EÂmail, PAN Card, Bank Account Number, if any; &

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the main matter without being influenced by the above observations.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

Copy dasti.