In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-17337 of 2010 ..... Date of decision:11.10.2010 Ravi Pal .....Petitioner v. State of Haryana .....Respondent .... Present: Mr. Ajay Kumar Thakur, Advocate for the petitioner. Mr. K.C. Gupta, Senior Deputy Advocate General, Haryana for respondent-State. Mr. P.K. Chugh, Advocate for the complainant. ..... S.S. Saron, J. Heard learned counsel for the parties. The petitioner seeks regular bail in a case registered against him for the offences under Sections 363, 366, 376 and 120-B IPC. The FIR in the case has been registered on the statement of Mahender Singh-father of the prosecutrix. According to the learned counsel for the petitioner, Ravi Pal-petitioner is not involved in the actual commission of rape with the prosecutrix and it is merely alleged that he had taken her on his motorcycle and attempted to commit rape. It is submitted that in the statement (Annexure-P.3) of the prosecutrix recorded under Section 164 Cr.P.C., the prosecutrix had stated that she had gone on her own with Vishnu and Narender, who, it is alleged, had committed rape. It is further submitted that the age of the prosecutrix is wrongly shown less than 16 years whereas her age is more than 16 years which is evident from the Cr. Misc. No.M-17337 of 2010 [2] birth certificate (Annexure-P.6). Besides, it is stated that during medical examination, the prosecutrix had stated that she had not forcibly been raped and she has physical relations with Vishnu with her own consent and she does not wish to be medically examined. Learned counsel for the State and the complainant have stated that the contentions raised by the learned counsel for the petitioner are baseless, inasmuch as, Visnu has been convicted by the learned Juvenile Justice Court. Besides, it is submitted that the petitioner is the person who surreptitiously took the prosecutrix on his motorcycle after making Narender to get down from the same and thus he facilitated the commission of rape. I have given my thoughtful consideration to the contentions of the learned counsel for the parties. According to the prosecutrix, in her statement (Annexure-P.3) recorded under Section 164 Cr.P.C., it is stated that one girl Aarti was in her neigbour and she was characterless. Narender is brother of Aarti and Vishnu and Ravi Pal (petitioner) are her nephews. Aarti used to represent that they were good persons and she should have friendship with them. Aarti had also shown her obscene films on Mobile and uttered sexually coloured words. On 24.2.2009, the prosecutrix had gone to the house of Aarti where Gaurav was present. Aarti left them alone and went away. Gaurav tried to outrage her modesty but he failed. He had undressed her but she ran away from there. She then told her mother about this. On the next day, she was going to school at around 9.30 a.m. and Ravi Pal (petitioner), Vishnu and Narender came on a motorcycle. Ravi Pal (petitioner) said that he would drop her to school on his motorcycle. Narender got down from the motorcycle and Ravi Pal instead of dropping Cr. Misc. No.M-17337 of 2010 [3] her to the school took her to Fatehabad. Narender was there at the Bus stand. After that they went to Ding Mandi on bus. Then they went to a room. Narender and Vishnu left the room. Ravi Pal (petitioner) being alone applied force against the person of prosecutrix and wanted to have sex without her will and consent but he failed. On 26.2.2009, Vishnu had sex with the prosecutrix without her consent. On 27.2.2009, Narender and Vishnu brought her to Delhi where they took a room. In that room she was raped regularly. A phone call was received there from Aarti informing them that the Police had been informed that they were in Delhi, The prosecutrix was then taken to U.P. State on a tempo. One old person held Vishnu, but Narender escaped. The person wanted to take them to some place but due to gathering of public, Police was informed and they were taken to the Police Station. There, the Police from Hisar took them. According to the learned counsel for the petitioner, the consent of the prosecutrix is quite evident as she had gone on the motorcycle of the petitioner to Fatehabad which is at a distance of 30 kms. Thereafter, four of them went to Ding Mandi in a bus which is at a further distance. Therefore, it is submitted that the petitioner is not liable for the offences alleged against him. After giving my thoughtful consideration to the matter, it may be noticed that the petitioner is the person who had surreptitiously taken the prosecutrix on his motorcycle and then tried to commit rape with her although he was unsuccessful. Thereafter, Narender and Vishnu indeed committed rape with her. The question of consent cannot be said of much significance at this stage specially when Vishnu, it is alleged, who had committed the offence, has been convicted by the Juvenile Justice Court. Cr. Misc. No.M-17337 of 2010 [4] This aspect is to be gone into during the trial of the case and at this stage no ground for grant of bail is made out. The criminal miscellaneous petition is accordingly dismissed. October 11, 2010. (S.S. Saron) Judge *hsp*