IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc M-3798 of 2009 Date of decision: 3.3.2009 Kamalpreet Singh alias Lali …Petitioner Versus State of Punjab …Respondent Present: Mr Rajiv Trikha, Advocate for the petitioner. Mr PS Sidhu, Addl AG Punjab. S.S.SARON, J. The petitioner seeks regular bail in a case registered against him for the offences under Sections 363, 366-A, 376 and 506 IPC. The FIR in the case has been registered on the statement of the prosecutrix aged about 16 years. It is alleged by her that Seema, a girl of her village, arranged her friendship with Kamalpreet Singh @ Lali (petitioner). On 8.9.2008 at about 5 p.m. in the evening, the prosecutrix received a telephone call from the petitioner who insisted again and again to meet him at the STD outside the village. The prosecutrix did not go there. On 9.9.2008 at night at about 2.30 a.m., it is alleged that the petitioner called the prosecutrix on the mobile of her father which remains with her. The petitioner is alleged to have threatened her to meet him outside the village. Out of fear, she went to meet him on his asking. The petitioner is alleged to have allured the prosecutrix with his talks and made her sit on his motorcycle. Thereafter, he took her to his house in village Pandora Ganga Singh where he used to live alone and he forcibly raped her and kept on Cr Misc M-3798 of 2009 2 taking her here and there continuously for 2 days and at night, she would be kept at his house. On 11.9.2008, the petitioner left the prosecutrix near village Mehangrewal. She went to the house of the Sarpanch of the village who informed her family and handed her over to them and the Panchayat of her village. Out of fear, she did not tell her parents. On 16.9.2008 i.e. the date of registration of the FIR, she told everything about the occurrence to her parents. On the basis of her statement, the FIR was registered. Learned counsel for the petitioner has contended that even if the allegations are taken as they are, it is a clear case of consent on the part of the prosecutrix as she is more than 16 years of age on the date of the occurrence. It is submitted that as per the ossification test, the age of the prosecutrix has been determined as 17 to 19 years. It is submitted that the prosecution has relied upon the School Leaving Certificate of the prosecutrix, according to which her date of birth is 26.6.1992. Therefore, it is submitted that in view of Clause sixthly of Section 375 IPC, she was in the age group where she could give her consent. In response, learned counsel for the State has opposed the application. It is submitted that merely because the prosecutrix had gone out with the petitioner on making a telephone call by the latter, does not mean that she had consented to have sex with the petitioner. It is also submitted that the prosecutrix being of an impressionable age was allured by the petitioner to have sex with him which even otherwise cannot amount to consent. After giving my thoughtful consideration to the contentions of the learned counsel for the parties, the question whether there was consent on the part of the prosecutrix to have sex with the petitioner, is not to be gone into in the proceedings for the grant of bail at this stage. This would Cr Misc M-3798 of 2009 3 require to be considered by the trial Court after evidence has been led by the parties. However, it may be noticed that the prosecutrix indeed did remain with the petitioner for 3 days and there is nothing to show that she had at any point of time protested her presence with him. The petitioner has been in custody since 16.9.2008. The prosecution has cited 19 witnesses who are to be examined. The trial in the case has not yet commenced and it is likely to take time to conclude. Learned counsel for the petitioner has referred to the mobile calls between the petitioner and the prosecutrix, the details of which have been placed on record as Annexures P7 to P8. A reference is also made by the learned counsel for the petitioner to the medical examination report (P5) of the prosecutrix to contend that no injury was found on the person of the prosecutrix. Keeping in view the aforesaid facts and circumstances, the petitioner, on his furnishing personal bond and surety to the satisfaction of the learned CJM Hoshiarpur, shall be admitted to bail. It is made clear that nothing observed hereinbefore shall be construed as an expression of opinion on the merits of the case and the trial Court shall consider the case on the basis of evidence and material as may be produced before it. 3.3.2009 ( S.S.SARON ) ASR Judge