Gauhati High Court Grants Bail To Army Major Accused Of Torturing Minor Domestic Help

Justice Susmita Phukan Khaund observed, “Indeed, there are incriminating materials against the petitioner and his wife. The photographs clearly reveal that the victim was subjected to extreme cruelty, but fortunately, the victim has survived. The statement of the victim also reveals that the petitioner is also complicit. He was privy to the cruelty extended to the victim, but he never stopped his wife from subjecting the victim to such inhuman and relentless cruelty. He had indeed harboured his wife.”

The above ruling came in an application filed by one Major Shailendra Kumar Yadav under Section 439 CrPC, with prayer for bail, as he was in custody since 25.09.2023, in connection with a PS Case under Sections 326/354/370/374/34/506 IPC, read with Section 12 of the POCSO Act, 2012 and Section 3 of the SC and ST (Prevention of Atrocities) Act, 1989.

According to the First Information Report (FIR), the informant entrusted the care of the victim - 'X,' to the petitioner and his wife. However, instead of providing proper care, the petitioner and his wife treated the victim as a domestic helper, subjecting her to continuous and inhumane cruelty.

The victim was forced to take care of the petitioner's infant and endured merciless and relentless assaults, primarily by the petitioner's wife, with occasional involvement from the petitioner himself. The FIR alleges that the petitioner and his wife caused severe injuries to the victim.

Additionally, the FIR stated that the petitioner's wife forcibly took explicit photographs of the victim and threatened to upload them on social media.

The petitioner argued that the FIR explicitly indicated that the severe injuries were purportedly inflicted by the petitioner's wife, not by the petitioner. It was asserted that the petitioner should not be charged under Section 12 of the POCSO Act, and responsibility under Section 374 IPC cannot be attributed to the petitioner since the informant herself handed over the victim to him.

The petitioner's counsel also emphasized that the petitioner has been in custody for 70 days. Notably, his three-year-old child is currently battling a severe heart ailment, including a cardiac defect, and with the petitioner's wife incarcerated, there is no one available to care for the child, who urgently requires medical attention.

The Public Prosecutor while raising serious objections against the bail petition submitted that although it was mentioned in the FIR that the informant handed over the victim to the petitioner and his wife, the victim was not taken care of as promised by the petitioner and his wife. Instead, both the petitioner and his wife subjected her to inhuman cruelty. It is submitted that the petitioner being a formidable person, an army personnel may be a threat to the witnesses as well as the victim.

The Public Prosecutor further submitted that the petitioner being an army personnel was under the oath of saving the citizens, but contrary to this, in this case, he is the reason behind endangering the life of a citizen. He was privy to the atrocities committed by his wife to the victim.

The Public Prosecutor vehemently opposed the bail petition, contending that despite the First Information Report (FIR) stating that the informant entrusted the victim to the petitioner and his wife, the latter failed to fulfil their promise of taking care of her. Instead, the petitioner and his wife subjected the victim to brutal and inhumane treatment. Concerns were raised about the petitioner, an army personnel, posing a potential threat to both witnesses and the victim.

Emphasizing the contradiction between the petitioner's role as a guardian and the alleged mistreatment, the Public Prosecutor argued that the petitioner, sworn to protect citizens, was now implicated in endangering a citizen's life. The prosecutor highlighted the petitioner's awareness of the atrocities committed by his wife against the victim.

The prosecution drew attention to the Case Diary and photographic evidence, revealing severe injuries sustained by the victim, including a severed tongue, broken teeth, and extensive marks across her body, including her back. It was underscored that such cruelty could not have escaped the petitioner's notice, given that the victim was under his protection.

Furthermore, the Public Prosecutor asserted that the minor victim was coerced into performing household chores akin to a slave, thereby violating her human rights. The overall contention was that the petitioner, as an army personnel, not only failed in his duty to safeguard the victim but also actively participated in the perpetration of heinous acts against her.

The Public Prosecutor emphasized that the medical certificate presented to the Court was notably ambiguous, as observed by the Court itself. Moreover, the Public Prosecutor highlighted that the report, issued on 22.11.2020, pertained to the health status of the petitioner's minor son when he was still an infant. However, given the passage of time, the petitioner's son is now over 3 years old.

Additionally, the Public Prosecutor pointed out the absence of any medical emergency certificate provided by the petitioner. Furthermore, he argued that the old certificate lacks authenticity, as it lacks the seal of the hospital or medical institute.

While disposing of the bail application, the Court held, “After giving my thoughtful consideration to the submissions at the Bar and after considering the length of detention and the progress of investigation, the petitioner is enlarged on bail of Rs. 50,000/- (Rupees Fifty Thousand) only with two local sureties of the like amount to the satisfaction of the learned jurisdictional Court, under the conditions that

i) the petitioner shall not go near the vicinity of the victim,

ii) the petitioner shall cooperate with the investigation as well as the trial,

iii) the petitioner shall not default appearance or jump bail,

iv) the petitioner shall not leave the country without prior permission, till completion of the investigation as well as trial,

v) the petitioner shall not exercise threats to witnesses or tamper with the evidence.”

Case Title: Major Shailendra Kumar Yadav Vs. The State Of Assam And Anr

LL Citation: 2023 LiveLaw (Gau) 

Case No.: Bail Appln./4066/2023

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