Deepak v. State of Hary Haryana CRM-M & Anr.

The aforesaid FIR (Annexure exure P-1) was registered on the basis of a co of a complaint moved by the mother s as other of the victim, which reads as under: - RISHU KATARIA 2024.09.17 17:42 I attest to the accuracy and authenticity of this order/judgment. “To, The Station House Off Officer, Police Station Kherki Daula, Gurugram. Sir, It is req requested that I Sunaina Dhawan wife of Nikhil Dhawan reside le, sident of MAPSKO, Royal Ville, Grand 002, Sector 82, Guru a urugram. My husband owns a factory. I have two children n y en named Khushi and Parth. My daughter Khushi pursuing stu .S study of 12th Class in D.P.S CRM-M-260 26097-2024 -2- School Gurugram. On dated 0 ted 03.01.2021, my daughter had joined Gym Smash Fitness, Tow Town Square Sector 82A. Deepak Tanwar is the gym trainer of of my daughter Khushi. Deepak was willing to be a friend of m of my daughter Khushi, since she had joined the gym. The time ck. time for the Gym was 2 O'clock. After the gym time, Deepak T ak Tanwar often talked with my daughter for friendship. Subseq bsequently Khushi was enticed by Deepak. Thus Deepak and Khus Khushi started holding talks. After gym time, Deepak brought Khu Khushi in the basement of Gym in Town Square. Then he made made physical relation with my daughter Khushi in the month o nth of June 2021 in his Breza Car No. HR 9983. My daughter Kh r Khushi did not disclosed about this to me. Deepak at many many times, has made physical relations with my daughter in h in his car. Because of the exams of Khushi, in the month of Feb m. February 2022, she had left gym. After her examination, in the the month of June 2022, Khushi had again joined Gym. Becaus cause of the friendship of Deepak with Khushi, further increased ased the level of his friendship by offering her meal and ice-cream ream. Then, after gym time, again Deepak made physical relation ar. tions with my daughter in his car. In the month of January 2023, In 23, it was birthday of Deepak. In the birthday party, Shovit Kum Kumar friend of Deepak grabbed the hand of Khushi, touched h ed his hand at her thigh and said that, do not disclose about thi t this to anybody. Because of the friendship between Deepak and and Khushi, my daughter did not disclosed anything to me. Bu . But since last few months, the demand of Deepak for ma making physical relations was increased. Therefore, my dau d. daughter Khushi was harassed. Under the garb of gym, Deepa epak used to take my daughter at lonely place and caused enoug er. ough harassment to my daughter. On dated 18th April 2023, 23, Deepak had made physical relations with my daughter in er in his car. My daughter was harassed and today she has di as disclosed everything regarding Deepak and Shovit to me. e. Deepak and his friend has RISHU KATARIA 2024.09.17 17:42 I attest to the accuracy and authenticity of this order/judgment. CRM-M-260 26097-2024 -3- committed wrongful act again gainst my daughter. Deepak and Shovit may kindly be severel verely punished. Today, I came present in the Police Station an n and has given this application in the presence of Meena Bhardwa rdwaj Legal Advisor…..” Learned counsel for the petition petitioner, inter alia, submits that at the time of e of commission of the offence, the 15 ce, the victim was minor being 15 years of age; of age; whereas the petitioner was 29 er is as 29 years of age. The petitioner is a Trainer in ner in the Gym, where the victim used used to come to exercise. Learned counsel con contends that over time a conse consensual relationship developed between the en the petitioner and the victim. In thi rs to In this regard, ld. Counsel refers to the first stat statement made by the victim und under Section 161 Cr.P.C. dated

21.04.2023 2023 (Annexure P-4), wherein she n she has admitted that she gave expensive gi gifts to the petitioner. However, in ver, in her supplementary statement dated 21.4.2

21.4.2023 itself (Annexure P-4 at pag , the at page 28 of the paper-book), the victim has al has alleged that the petitioner had dem ad demanded Rs.3-4 lakhs from her for starting h rting his own business. Ld. Counsel a t of unsel also refers to the statement of the victim ictim recorded under Section 164 023 64 Cr.P.C. dated 22.04.2023 (Annexure R xure R-2), wherein she has admitted t itted that she was sending her own objectionabl ionable photographs to the petitioner. ioner. Learned counsel submits that in view of w of the aforesaid facts, it is clea in a is clear that the victim was in a consensual r oner. sual relationship with the petitioner. Learned counsel for the pet e petitioner again refers to the statement of ent of the victim under Section 161 n 161 Cr.P.C. (Annexure P-4), to submit that t that the victim has admitted there therein that the relationship had started in the in the month of June 2022. As per th s per the FIR the last incidence was of 18.04.202

04.2023. However, FIR (Annexure P y on re P-1), has been registered only on RISHU KATARIA 2024.09.17 17:42 I attest to the accuracy and authenticity of this order/judgment. CRM-M-260 26097-2024 -4-

21.4.2023. I

023. It is contended that there is no y in no explanation for this delay in lodging the F g the FIR. Reference has also been made t made to the testimony of the victim as PW-3 be 3 before the learned trial Court (A urt (Annexure P-6), wherein in the cross-examin examination the victim had stated that ed that the petitioner had threatened her with a a gun and thus, entered into physic It is physical relationship with her. It is submitted th tted that the said allegation is incorre n no ncorrect, as during investigation no gun was rec as recovered from the petitioner. Moreover, as per MLR dated

22.4.2023(A 023(Annexure P-5), no injury was was found on the person of the victim. Furt Further, it is submitted that the pe the petitioner has been in custody since 22.04

22.04.2023. Thus, it is prayed that he that he may be released on regular bail. Per Contra, learned counsel fo sel for the complainant vehemently opposes the es the prayer for grant of regular bail ar bail to the petitioner and submits that it was a was a fiduciary relationship between t m as ween the petitioner and the victim as she was a tr as a trainee under the petitioner at th r at the Gym. There is a huge age difference b nce between them as, at the time time of alleged occurrence, the petitioner wa ner was almost twice the age of the vic old. victim who is only 15 years old. Moreover, t ver, the petitioner is a married m . ied man and having 02 children. However, th ver, this fact was not disclosed by th by the petitioner to the victim. As such, any co any contention on the part of the pe the petitioner that the relationship between the en them was consensual, is utterly fals ly false. It is further submitted that the the petitioner had compelled the victim to st to steal gold articles from her hou r house in order to meet his own expenses. It ses. It is accordingly contended tha ed that the petitioner had grossly RISHU KATARIA 2024.09.17 17:42 I attest to the accuracy and authenticity of this order/judgment. CRM-M-260 26097-2024 -5- exploited a ted and abused the minor victim victim. Learned counsel for the complainant ainant further submits that it is the the lacuna on the part of the Investigating igating Agency that the gun was not s not recovered from the petitioner during the c the course of investigation. In this re this regard, learned counsel for the complainant ainant has referred to the WhatsApp tsApp Chat between the petitioner and victim ictim reproduced at page 85 of th of the paper-book, wherein the petitioner ha ner has stated that he has a gun to wh t the to which the victim replied that the petitioner sh ner should not unnecessarily threaten h eaten her. The learned counsel for the Stat he State has also fully supported the submissions ssions made by learned counsel for th for the complainant and has further submitted th that it was a fiduciary relationsh tionship between the petitioner and the victim. T . The petitioner had controlled th lled the psyche of the minor victim and forced th rced the victim to steal valuable article articles from her house and provide the same to me to the petitioner for his wrongful ongful gain and use. The petitioner had failed to iled to disclose to the victim that he ng 2 at he was a married man having 2 children. On instructions from L/SI Su SI Sunita, learned counsel for the State inform nforms that out of total 28 prosecution ecution witnesses, only 06 witnesses stand examin examined by the learned trial Court. ourt. Learned counsel for the State files custody ustody certificate dated 17.09.2024 wh which is taken on record, as per which the pe the petitioner has been in custody as a 01 dy as an undertrial for a period of 01 year, 04 mon months and 26days. Perusal of the of the custody certificate shows that the petitione titioner is not involved in any other cas her case. I have heard learned counse counsel for the parties. Without commenting enting on merits of the case, however wever, keeping in view the totality RISHU KATARIA 2024.09.17 17:42 I attest to the accuracy and authenticity of this order/judgment. CRM-M-260 26097-2024 -6- of the facts a facts and circumstances of the case, in d of ase, including:(a) custody period of 01 year, 04 04 months and 26days undergo ndergone by the petitioner as an undertrial; (b)perusal of custody certificate er is ificate reveals that the petitioner is not involved volved in any other case;(c)that the ma the material witnesses i.e. the victim as well as he her mother/complainant stand exa ; examined by learned trial Court; and (d) out o out of total 28 prosecution witnesses nesses, only 06 witnesses have been examined, so ned, so far, therefore, conclusion of tri of trial will take considerable time, and no usef o useful purpose would be served erved by further detention of the petitioner. T ner. Thus, the present petition is allow allowed. The petitioner-Deepak S/o Suk /o Sukkan Singh, is ordered to be released on ed on regular bail on his furnishin rnishing bail/surety bonds to the satisfaction ction of the trial Court/Chief Judicial rate, udicial Magistrate/Duty Magistrate, rned. concerned. However, it is made clear that ll be r that nothing stated above shall be construed as ued as an expression of opinion on the on the merits of the case. 2024

17.09.2024 ( NIDHI GUPTA ) JUDGE Whether speaking/reasoned Yes/No Whether Reportable Yes/No RISHU KATARIA 2024.09.17 17:42 I attest to the accuracy and authenticity of this order/judgment.