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2020 DIGILAW 384 (HP)

Maangi Devi v. State Of Himachal Pradesh

2020-07-02

JYOTSNA REWAL DUA

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JUDGMENT Jyotsna Rewal Dua, J. (Oral) - Instant bail petitions have been moved for grant of anticipatory bail under Section 438 of Code of Criminal Procedure in FIR No. 15/2020 dated 20.06.2020, under Section 376 of the Indian Penal Code, Section 4, 21 of the Protection of Children from Sexual Offences (POCSO) and Section 11 of the Prohibition of Child Marriage Act, registered at Women Police Station Nahan, District Sirmour, Himachal Pradesh. 2. Interim protection was granted to the petitioners vide order dated 24.06.2020, subject to the conditions stipulated therein. 3. I have heard learned counsel for the parties through video conference and gone through the status report as well as the appended record. 4. The prosecution case as it comes out from the status report and the appended record is:- 4(i) Child Welfare Committee (CWC), District Sirmaur, addressed a letter dated 15.01.2020 to the Superintendent of Police Sirmour, District at Nahan, to the effect that it had received a complaint dated 23.11.2019 from Childline Sirmour, in respect of an alleged case of child marriage and sexual abuse. Averments made in the complaint were that a minor boy named Jeevan Singh (son of petitioners in Cr.MP(M) Nos.940 and 943 of 2020) with date of birth 25.03.2002 had married a 'Girl' (name withheld-with date of birth 25.01.2001) (daughter of the bail petitioners in Cr.MP(M) Nos.939 & 941 of 2020). A male child was born to them on 18.11.2019. Therefore, request was made by the Childline Sirmour, for registering a case against the culprits for sexual abuse & child marriage. 4(ii) The complaint was investigated by the police. During investigation, the date of birth of 'The Girl' in the Pariwar Register was found recorded as 25.12.2002, whereas, that of the boy was recorded as 25.03.2002. This led to registration of the aforesaid FIR in question against the petitioners as well as against the boy-Jeevan Singh. 4(iii) Further investigation was carried out by the police. Medical examination of 'The Girl' was attempted on 22.06.2020, however, she refused to undergo the medical examination. She also refused to get her child medically examined. She also declined to give blood-sample of her child for the DNA testing. 4(iv) On 23.06.2020, statement of 'The Girl' was recorded under Sections 161 and 164 of the Code of Criminal Procedure. Her consistent version in these statements was that she used to go to forest alone for cutting grass. She also refused to get her child medically examined. She also declined to give blood-sample of her child for the DNA testing. 4(iv) On 23.06.2020, statement of 'The Girl' was recorded under Sections 161 and 164 of the Code of Criminal Procedure. Her consistent version in these statements was that she used to go to forest alone for cutting grass. There she met a boy and physical relations were established between them twice or thrice. She refused to divulge the name and whereabouts of this boy. She got pregnant, where after, her mother took her to the home of her distant uncle whom she referred as her 'Mama' where she stayed till the birth of her child. She specifically denied marrying Jeevan Singh (son of the petitioners in Cr.MP(M) Nos.940 & 943 of 2020). She denied that she was sexually abused by Jeevan Singh. 4(v) Further investigations were carried out. During which, the date of birth of 'The Girl' was ascertained as 25.01.2002 on the basis of her birth certificate. Her marriage was not found registered in the record of the Gram Panchayat Redli i.e. place of residence of her parents (petitioners in Cr.MP(M) Nos.939 & 941 of 2020). According to the record obtained from Gram Panchayat Jarag, the date of birth of the boy Jeevan Singh was 28.03.2002 and he was unmarried. At Health Center Jarag, Block Sangrah, vaccination record of the male child reflected 'The Girl' as his mother and wife of Jeevan Singh. Jeevan Singh was recorded as father of the infant. It is further stated that had 'The Girl' established physical relations with somebody else and became pregnant as was stated by her then this fact would have been reported by her parents to the police. Since the parents did not report this, therefore, apprehension was expressed in the status report that 'The Girl' had married Jeevan Singh while both were minor and petitioners (their parents) had performed their marriage in violation of law. 5. Learned counsel for the petitioners submitted that petitioners are parents of the boy Jeevan Singh & 'The Girl'. They are not guilty of the offences alleged against them. Pursuant to the interim order, they have already joined the investigation and will continue to cooperate the same & will abide by all the condition, which may be imposed upon them by this Court in case of grant/confirment of bail. They are not guilty of the offences alleged against them. Pursuant to the interim order, they have already joined the investigation and will continue to cooperate the same & will abide by all the condition, which may be imposed upon them by this Court in case of grant/confirment of bail. Whereas, learned Additional Advocate General while admitting joining of investigation by the petitioners, opposed the grant/confirmation of bail, considering nature of offences alleged against them. 6. Following becomes relevant in disposal of these petitions :- 6(i) Three different dates of birth of 'The Girl' have been mentioned in the status report viz. 25.01.2001 (mentioned in the report of CWC) and 25.12.2002 (as per Pariwar Register) and 25.01.2002 (as per her birth certificate) i.e. the records obtained during investigation. As per date of birth certificate obtained by the prosecution, her date of birth is 25.01.2002, which makes her now more than 18 years of age. What is her actual & correct date of birth is yet to be ascertained and verified by the prosecution and to be proved during the trial in accordance with law. However, the events & facts reported in the status report and in her statements recorded under Section 161 & 164 of the Code of Criminal Procedure, prima facie suggest at this stage that 'The Girl' was sufficiently mature for her age and had attained the age of discretion at the relevant time. 6(ii) 'The Girl' had given birth to the male child in 2019. Neither 'The Girl' nor her family members including her parents ( petitioners in Cr.MP(M) Nos.939 & 941 of 2020) ever held Jeevan Singh or his parents (petitioners in Cr.MP(M) Nos.940 and 943 of 2020) responsible in any manner for the alleged offences. 'The Girl' in her statement recorded under Section 161 as well as in the statement recorded under Section 164 of the Code of Criminal Procedure has consistently maintained that she had established physical relations with some stranger when she used to visit a jungle, alone for cutting grass. She has refused to divulge any details of this stranger. She specifically denied marrying Jeevan Singh. She has not implicated Jeevan Singh or his family members including his parents in any manner. She has also not implicated her parents. She has refused to divulge any details of this stranger. She specifically denied marrying Jeevan Singh. She has not implicated Jeevan Singh or his family members including his parents in any manner. She has also not implicated her parents. There is no contemporary evidence at the moment available of her marriage with Jeevan Singh, either at her place of residence or at the place of residence of the boy (Jeevan Singh). The Gram Panchayat records of their separate villages show both of them as unmarried. 6(iii) 'The Girl' in her statement recorded under Section 164 had even stated that on discovery of her pregnancy, she was taken by her mother to her distant relation 'Mama's home, where she stayed & gave birth to the child. Merely on the basis of vaccination record of the male child registered at Health Center Jarag, wherein Jeevan Singh was entered as his father and 'The Girl' (child's mother) reflected as wife of Jeevan Singh, it is not sufficient to presume marriage between these two and to assume that she was sexually abused by Jeevan Singh and that both were got married by their parents (present petitioners) & to deny them protection of bail at this stage, especially when in the birth certificate, the age of 'The Girl' is recorded as 25.01.2002. She is presently aged more than 18 years and has not levelled any allegations either against the boy or against the petitioners in respect of offences alleged against them. All the petitioners are local residents & their presence can be secured in the trial. Admittedly, pursuant to interim protection granted to them, they have all joined the investigation and are cooperating with the same. 7. Against above backdrop, no fruitful purpose will be served by sending the petitioners to judicial custody. Accordingly, these petition are allowed and the interim orders passed in all the aforesaid petitions on 24.06.2020 are made absolute subject to following conditions:- (i) Petitioners are directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. They shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law; (ii). Petitioners shall not temper with the evidence or hamper the investigation in any manner whatsoever; (iii). Petitioners will not leave India without prior permission of the Court; (iv). They shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law; (ii). Petitioners shall not temper with the evidence or hamper the investigation in any manner whatsoever; (iii). Petitioners will not leave India without prior permission of the Court; (iv). Petitioners 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; (v). In case of launching of the prosecution, petitioners shall attend the trial on every hearing, unless exempted in accordance with law; (vi). Petitioners 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. Petitioners shall furnish detail of their Aadhar Cards, Telephone Numbers, E-mail, PAN Cards, Bank Account Numbers, if any;& It shall be open for the prosecution to move for cancellation of the bail in case the petitioners abuse the liberty granted and breache the conditions of bail. Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide the matter uninfluenced by any of observations made hereinabove. Accordingly, this petition stands allowed in above terms. With the aforesaid observations, the present petitions stand disposed of, so also the pending miscellaneous applications, if any. Authenticated copy.