An application was filed under Sec-439 CR.P.C. for seeking bail in a case arising out of FIR for offences punishable under Indian Penal Code (IPC), 1860 and Protection of Children from Sexual Offences (POCSO) Act, 2012.
FACTS OF THE CASE
- The 14-yr-old victim girl along with her father lodged a complaint alleging that, she was sent by her father to the house of Petitioner and accused (wife and husband respectively) , for learning embroidery work.
- It was alleged that after 8 days, the victim girl came back to her home and 2 days thereafter, the accused called her on telephone, after which she started crying. Her father enquired about the reason and she told him that she had been raped by the accused after making her unconscious. The FIR was registered and investigation of the case was started.
- During the investigation, the statement of victim was recorded under Sec-164 CR.P.C. In her statement, she sated that during her stay in the house of accused, she was raped twice by the accused.
- She further told that as a result of sexual assault, she suffered bleeding and when she talked about the same to the Petitioner, she was told by her that she deserves the same treatment. Victim also stated that something was sprinkled on her mouth by the Petitioner which made her unconscious and when she regained her senses, she found herself in a naked position.
- The victim girl further stated that the Petitioner is a bad charactered woman and having an illicit relation with one of the cousins of her grandfather. She also told that when she talked to the accused on telephone, he told her that if she gets pregnant, he will bear the expenses of terminating the pregnancy. She told that accused offered Rs. 4000 to Rs. 5000 to her father for settling the matter but they didn’t accept this request.
- After the investigation, the role of Petitioner was coming into force as an abettor. The chargesheet was filed against the Petitioner and her accused husband before the trial court. They were charged with the offences under Sec-376, Sec-109 of IPC read with Sec-4 (Punishment for penetrative sexual assault) and Sec-17 (Punishment for abetment) of the POCSO Act, 2012.
- The Petitioner also approached to the trial court for grant of bail but the same was rejected by the trial court. Thus, a petition for bail was filed in High Court.
- The learned counsel of Petitioner contended that she has been falsely implicated in the case and languishing in the jail. They said that the story told by victim in her statement recorded under Sec-164 of CR.P.C. was highly improbable and the same was concocted. According to the Petitioner, it was the case of honey trap and exploitation.
- They further said that there were contradictions in the statements of victim recorded under Sec-161 CR.P.C., Sec-164 of CR.P.C. and the statement recorded during the trial. It was also contended that the statements of prosecution witnesses recorded during the investigation of the case were also contradictory in nature.
- Lastly, they submitted that the Petitioner is a woman and she is entitled to leniency while considering her prayer for grant of bail.
OBSERVATION OF THE COURT
- Court observed that the Petitioner is alleged to have aided and abetted her husband, the main accused, in commission of rape upon the victim girl, who, as per the prosecution case, was aged about 14-yr-old at the time of incident.
- The court observed that there may be certain contradictions in the statement of the victim girl recorded during the trial, when the same was compared with her statements recorded during the investigation of the case, but court said that it is not open to this court to minutely examine and weigh the evidence at the time of considering the bail plea of the Petitioner. Court further said that the matter of fact remains that the victim girl, in her statement recorded during the trial, supported the prosecution and reiterated that she was raped twice by the Petitioner’s husband along with the aid and assistance of the Petitioner. So, to that extent there are no contradictions in the statement of victim girl.
- Court, while considering the age of Petitioner, her accused husband and the victim girl, said that as per facts, the victim girl was sent by her father to the house of Petitioner for learning embroidery work. Thus, she was under the guardianship of the Petitioner and her accused husband. There was a bond of trust and confidence reposed by the victim and her father upon the Petitioner and her accused husband, which was shaken by the abhorrent behavior of the Petitioner and accused. Also, it brought a bad name to the relationship of a child with her guardian.
- Court while reading various Supreme Court judgements said that, it is clear that in the cases involving offences of serious nature falling under IPC or POCSO Act, where the victim happens to be a minor child, the Court has to be alive to the need for protecting the victims and the witnesses and it is duty of the Court to ensure that victim and witnesses, in such serious matters, are made to feel secure while deposing before the Court. This can be ensured only if the statements of the victim and the material witnesses are recorded while keeping the accused behind the bars.
Considering these grounds, the Hon’ble High Court rejected the bail application.
– Vaishali Jain, Advocate & Associate – POSH at Work & Riddhima Khanna