Punjab-Haryana High Court
Asha vs State Of Haryana on 15 November, 2022
CRM-M-28809-2022 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
SR. No.105+210
(1)
CRM-M-28809-2022 (O&M)
Reserved on:11.10.2022
Pronounced on :15.11.2022
Asha ...Petitioner
Versus
State of Haryana ...Respondent
(2)
CRM-M-13397-2022 (O&M)
Ravinderpal Singh ..Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE N.S. SHEKHAWAT
Present: Mr. Ashwani Gaur, Advocate,
for the petitioner in CRM-M-28809-2022
Mr. Sachin Chhokar, Advocate,
for the petitioner in CRM-M-13397-2022
Ms. Sheenu Sura, DAG, Haryana.
Mr. Sanjeev Sharma, Advocate,
for the complainant.
N.S. SHEKHAWAT, J.
CRM-35001-2022 in CRM-M-13397-2022
For the reasons mentioned in the application, the same is
allowed. Statement of prosecutrix/victim is taken on record as Annexure
P-6.
CRM-36218-2022 in CRM-M-13397-2022
For the reasons mentioned in the application, the same is
allowed. Statements of prosecutrix/victim and her mother are taken on
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record as Annexures P-7 and P-8.
Main case(s)
This order shall dispose of above-mentioned two petitions as
both these petitions arise out of the same FIR. For the facility of reference,
facts are being taken from CRM-M-28809-2022.
Asha (petitioner in CRM-M-28809-2022) and Ravinderpal
Singh (petitioner in CRM-M-13397-2022) pray for grant of bail pending
trial in FIR No.246 dated 28.09.2022 under Section 363 IPC (Sections 506,
376(d), 120-B IPC and Sections 6 & 8 of POCSO Act and Sections 3 and 33
of SC & ST Act, 1989 registered at Police Station, Old Faridabad, District
Faridabad.
Brief facts of the case are that the FIR in the cases in hand was
got registered by 'D', (name has not been mentioned deliberately), wherein
it was alleged that her minor daughter (name of the prosecutrix/victim has
been withheld in view of the provisions contained in Section 33 of the
POCSO Act, Section 228-A of the IPC and in view of the law laid down in
the judgment of the Hon'ble Supreme Court in State of Karnataka Vs
Puttaraja, 2004 (1) RCR (Crl.) 113 and has been referred as the 'victim') is
aged about 15 years and she left home on 25.09.2020 without informing her
and she had searched her everywhere, but she could not know the
whereabouts of the victim and consequently, she had come to the police
station to lodge the FIR and her daughter may be searched. On the basis of
her statement, the FIR was registered by the police under Section 363 IPC
on 28.09.2020 and thereafter the investigation formally commenced. On
31.10.2020, the victim was recovered by the police from Plot No.206,
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Tower No.2, SRS, Sector-87, Faridabad, which was stated to be on rent with
Asha (petitioner in CRM-M-28809-2022). The statement dated 31.10.2020
of the victim was recorded by the police (vide Annexure P-2) in the
presence of her mother/complainant as well as the legal aid counsel on the
same day. The victim stated that she was unmarried and youngest of five
brothers and sisters. Her three sisters were married, whereas her brother
was unmarried. Her father had expired 8/10 years back and her mother was
working in an export company. Her mother and brother wanted to perform
her marriage forcibly and against her wish. Consequently, she left her house
on 25.09.2020 without informing anyone and out of her own free will and
went to her friend Asha (petitioner in CRM-M-28809-2022) and started
residing with her. The victim informed Asha that her mother had gone to
Delhi and she wanted to live with her for some time. The victim further
stated that no wrong act nor any teasing etc. were committed with her. Even
no untoward incident had taken place and she had made the statement
voluntarily.
On the same day, i.e. on 31.10.2020, the victim was taken to
BKH Hospital, Faridabad for her medical evidence. Again, the victim in her
own hand- writing stated that since no wrong act has been committed with
her, so she did not want to get her medical examination conducted. The said
statement was duly attested by her mother/complainant, lady constable and
the doctor, in whose presence the statement was recorded.
Again on 01.11.2020, the statement of the victim was recorded
by the Child Welfare Committee, Faridabad vide Annexure P-4. She made a
statement before the Committee that her brother is a vagabond and he used
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to beat her and her mother and also used to hurl abuses at her. Even her
brother was sent to jail in number of cases of theft and he used to bring girls
at the room many times and he and his friends used to commit bad acts with
the girls in her presence. Even he was made to understand several times but
he did not budge. The victim was fed up with this and at about 09.00 AM on
24.09.2020, she left her home and went to her friend petitioner-Asha on
foot and started living with her at her home. She stated that during this
period, no wrong act was committed with her. Even the said statement
(Annexure P-4) was made by the victim in the presence of her mother and it
was read over and explained to the victim as well as her mother by the Child
Welfare Committee, Faridabad.
Again on 01.11.2020, the statement of the victim was recorded
by the learned Judicial Magistrate, 1st Class, Faridabad vide Annexure P-5
and she made statement on similar lines. The victim stated that she left her
house on 24.09.2020 when nobody was at home. She went to Asha
(petitioner) and told her that her mother had gone to Delhi and Asha should
keep her for a period of one month in the absence of her mother and she
started living in SRS, Sector-87, Faridabad with Asha Didi. She was staying
there since then and nothing wrong had happened with her. Since the victim
did not want to return to her home, consequently as per the orders of the
court, she was taken to shelter home at Faridabad. Later on, the police
investigated the matter and keeping in view the evidence on record, the
cancellation report was prepared by the police on 24.11.2020.
Again on 18.12.2020, i.e. after more than 1½ months, the
victim appeared before the Child Welfare Committee, Faridabad and stated
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that for the last two years, her brother Ishwar had been raping her. Even his
friends Rahul, Rinku, Bitu, Lakshman and Sonu also used to have sexual
intercourse with her forcibly and this had happened with her since the year
2018 but she did not disclose anything to her mother. At about 09.00 Am
on 24.09.2020, she went to the house of Asha and told her everything. Asha
assured her that she would help her and would ensure the action against her
brother and her friends. On 28.09.2020, Asha left the victim at the house of
her brother and Bhabi (sister-in-law). Even Parkash, brother of Asha, also
tried to commit bad act with her. At this stage, the name of Ravinderpal
Singh (petitioner in CRM-M-13397-2022) was also mentioned. The victim
alleged that she was made to take one capsule for two nights, due to which,
she used to fall asleep. When she got up in the morning, she did not find any
cloth on her body. On her asking, she was informed by Asha that it was hot
in the night and the victim had herself removed her clothes due to the same.
On the third night, she did not take the capsule and pretended that she was
sleeping. However, after some time Rajinder came and he committed bad act
with her forcibly. She also stated that Rajinder, Ravinder, Ajit and Asha had
prepared her video also during her stay. A copy of the statement dated
18.12.2020 was annexed with the petition as Annexure P-6.
Later on, the victim made another statement (Annexure P-7) on
22.12.2020. The victim stated that her brother Ishwar and his friends
namely Rinku, Parkash, Manish, Lakshman, Rahul and Bitu also used to
commit bad act with her. Her brother was an anti social element and many
cases had been registered against him. As per the victim, she developed
friendship with Abdul and she left her home on 24.09.2020 and went to
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Asha. However, Asha refused to keep her with herself and asked her to go to
Parkash. On the asking of Asha, she went to the house of Parkash and Asha
did not accompany her. On that night, Parkash teased her in the night in the
presence of his wife and she told all this to Asha. After some time, she went
to SRS, Sector-87, Faridabad to live with Asha. On 28.09.2020, Rajinder,
Ravinder and Ajit came to Asha and Rajinder and Ajit made her drink with
some intoxicating substance. However, she stated that Ravinderpal Singh
(petitioner in CRM-M-13397-2022) did not commit any bad act with her.
She further stated that Asha used to give her drugs and capsules and even
Asha had prepared her nude videos without her knowledge. She stated that
she was living in Child Care Centre and wanted to stay there only.
Again on 11.01.2021, the victim again made a statement (P-8)
and levelled almost similar allegations. She stated that Rajinder had
committed bad act with her and Asha, Rajinder, Ravinder and Ajit had
beaten her up and Ravinder had clicked her photos, whereas Asha had
prepared her video. However, she did not level any allegation of rape or eve
teasing against Ravinder.
After a period of about 01 year, the victim made another
statement under Section 161 Cr.P.C. dated 12.09.2021 (Annexure P-9) to the
police and alleged that her mother and brother wanted to marry her forcibly
against her wish and she went to her friend Asha on 24.09.2020 and started
living with her. She alleged that Parkash tried to commit bad act with her.
Even Rajinder committed bad act with her, but Ravinder did not commit any
bad act with her. It was stated that Asha used to give her drugs etc. and
capsules everyday and had video- graphed her nude. Even she levelled
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allegations of rape against Ajit and stated that she was living in Child Care
Centre since the first day itself.
Learned counsel for petitioner-Asha (in CRM-M-28809-2022)
has submitted that from the record, it is apparent that the victim had made
08 different statements and the version given by the victim herself was self
contradictory. Neither the complainant nor the victim levelled any
allegation against the petitioner in their statements, i.e. FIR (P-1), statement
dated 31.10.2020 (P-2), statement before the doctor dated 31.10.2020 (P-3),
statement (P-4) made before the Child Welfare Committee, Faridabad,
statement made before the learned Judicial Magistrate 1st Class, Faridabad
(P-5). Since the victim did not allege anything against the petitioner(s), the
police had prepared the cancellation report on 24.11.2020. It has further
been argued that now the victim has been examined as PW-1 and her
mother, i.e. the complainant has been examined as PW-2 and even their
testimonies have been placed on record as Annexures, P-7 and P-8,
respectively. Learned counsel for the petitioner has further submitted that in
Annexures P-7 and P-8, the victim and her mother further improved their
version, which runs contrary to the earlier statements. He has next
contended that finding no substance, the cancellation report was prepared
by the police on 24.11.2020 and after about 01 month of the cancellation of
the case, the complainant/victim improved their version and introduced a
concocted story, as per which, the petitioner-Asha had allegedly
videographed the victim, when the bad act was committed by others.
However, during the course of investigation, the said version has also been
found to be false and no video/photographs have been recovered by the
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police. Learned counsel for the petitioner-Asha has further argued that the
petitioner is a student of LLB (3rd year) and was pursuing her course from
Dr. B.R. Ambedkar College, Agra. She was staying in the same house
where the victim was living. Later on, the victim became friendly with her
and she herself came to the petitioner (Asha) in SRS Society, Faridabad and
told her that her mother had gone to the house of her relative for a period of
one month and she would like to stay with the petitioner. Thereafter, she
has been involved in the instant case with the aid of Section 120-B IPC.
Still further, it has been falsely alleged by the victim that the petitioner
(Asha) allegedly used to administer her drugs, ganja etc., as no such
recovery has been effected from the present petitioner. Further, there is no
medical evidence to show that the victim was allegedly provided any such
intoxicating substance by the present petitioner. It has further been
submitted that the petitioner was arrested in the instant case on 31.03.2022
and being a lady, deserves sympathetic consideration by this Court. He has
further contended that the victim and her mother, i.e. the material witnesses
of the prosecution, have already been examined and they have further
presented an improved version before the Court. He has referred to the
testimony of PW-1 (victim) and PW-2 (complainant) extensively and
pointed out certain contradictions/discrepancies in their respective
testimonies, which have not been reproduced for the sake of the brevity of
the matter. Even this Court has refrained from making any comments on the
statements of said two witnesses, so that it may not affect the proceedings
before the learned trial Court.
Learned counsel for the petitioner-Ravinderpal Singh (in CRM-
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M-13397-2022) has submitted that petitioner-Ravinderpal Singh was not
named in the FIR either by the complainant or the victim. He has further
submitted that his name appeared first time in the statement made by the
victim on 18.12.2020 (P-6). Even in the said statement, there were no
allegations of rape against the present petitioner and only his presence has
been shown at the time, when Rajinder had committed bad act with the
victim. It was only alleged against the petitioner that he along with Asha
and others had prepared the video of the complainant, but no such video has
been recovered during the course of the investigation. He has further
submitted that in her statement dated 22.12.2020 (P-7), the victim had
clearly stated that the petitioner had not committed any wrong act with her.
Even in her statement dated 12.09.2021 (P-9), the victim had clearly stated
that the petitioner had not committed any wrong act with her. However, it
was only alleged that she was offered an intoxicating substance by Rajinder,
Ajit and Ravinder and the petitioner was shown to be present at the place of
occurrence by the victim. He further submitted that the petitioner was
involved in the instant case after a period of more than 01 year and he was
arrested on 01.12.2021 without any incriminating evidence against him.
Even no photograph/video has been recovered from him during the course
of investigation.
The arguments raised by learned counsel for the petitioners
have been vehemently opposed by the learned counsel for the State by
submitting that the petitioners had administered slipping pills to the victim
and specific and serious allegations have been levelled against both the
petitioners. Even the rape was committed on the victim, who is a minor, in
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the presence of both the petitioners and they were involved in a ghastly
crime. However, learned counsel for the State admitted that there was no
medical evidence with regard to administering the pills and no video,
allegedly prepared by both the petitioners, was recovered during the course
of investigation.
Learned counsel for the complainant also vehemently opposed
the grant of bail by alleging that petitioner Asha had taken advantage of her
friendship and the victim was subjected to gang rape. Consequently,
keeping in view the seriousness of the matter, both the petitioners are not
entitled for grant of bail.
This Court has heard the learned counsel for the parties at
length and has perused the case file minutely.
It is not in dispute that initially the statement of the victim was
recorded by the police after her recovery on 31.10.2020, vide Annexure P-2
and she did not level any allegation against anyone. The said statement of
the victim was recorded in the presence of the legal aid counsel and her
mother. Similarly, even in BKH Hospital, Faridabd, the victim stated
before the doctor that no bad act had been committed with her and she did
not want to get her medical examination conducted. Even the statements of
the victim was recorded by the member of the Child Welfare Committee,
Faridabad in the presence of her mother and no allegation of any offence
was levelled against anyone. Even the victim did not level any allegation
against anyone, when her statement (P-5) was recorded by the learned
Judicial Magistrate 1st Class, Faridabad on 01.11.2020. She levelled serious
allegations for the first time on 18.12.2020, i.e. after a period of 01 month
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and 18 days of her recovery by the police. Even this Court has perused the
various statements made by the victim and her mother at different stages of
enquiry, investigation and trial and all the statements are contradictory. Still
further, petitioner (Asha) is in custody since 31.03.2022, whereas petitioner
(Ravinderpal Singh) is in custody since 01.12.2021. The victim and her
mother have already made their statements before the learned trial curt and
there are no chances of tempering with the prosecution evidence.
No doubt, the allegations levelled by the complainant and the
victim are serious in nature, however, the petitioners cannot be detained for
an indefinite period as under trial prisoners as the same will be violative of
their rights under Article 21 of the Constitution of India. This Court cannot
lose sight of the fact that the complainant and the victim have made
contradictory statements at different stages and the investigation has been
completed and the trial of the case may take long time. Therefore, this
Court is of the view that both the petitioners are entitled to grant of bail
pending trial on stringent conditions in order to already apprehensions
expressed by learned counsel for the complainant.
As a consequence of the above-discussion, both the above-said
petitions are allowed. Consequently, it is ordered that both the petitioners,
i.e. Asha (petitioner in CRM-M-28809-2022) and Ravinderpal Singh
(petitioner in CRM-M-13397-2022) be released on bail pending trial on
executing bond with two solvent sureties each in a sum of Rs.25,000/- to
the satisfaction of the concerned learned trial Court/CJM/Duty Magistrate
subject to the following conditions:-
(i) That the petitioners shall file their respective affidavits
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before the concerned court, disclosing their ordinary
places of residence during the pendency of the trial. The
petitioners shall also inform the court about the mobile
numbers, they are likely to use during the said period.
They shall also undertake that they shall not involve in
same or similar offence, during the pendency of the trial.
In case the petitioners wish to shift their ordinary place
of residence, they shall inform at least one week in
advance to the concerned court in this regard;
(ii) 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 to
disclose such facts to the court or to any authority;
(iii) The petitioners shall remain present before the court on
the dates of hearing of the case. In case, the petitioners
want to remain absent, they shall seek prior permission
of the court in this regard;
(iv) The petitioners shall also surrender their passport if any,
(if not already surrendered) and in case they are not
holders of the same, they shall swear an affidavit to that
effect and the said affidavit shall be presented before the
concerned court at the time of grant of bail.
It is clarified that the above observations have been made for
the limited purpose of grant of bail and nothing stated therein shall be
construed as an expression/opinion on the merits of the case.
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Both the above-said petitions stand allowed in the above-said
terms. Pending application, if any, shall also stand disposed of.
(N.S. SHEKHAWAT)
15.11.2022 JUDGE
mks
Whether Speaking/Reasoned: YES / NO
Whether Reportable: YES / NO
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