Crl. Misc. No.M-1665 of 2011 ::1:: IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No.M-1665 of 2011 Date of decision: 17.02.2011 Liyakat Ali .. Petitioner Versus State of Haryana .. Respondent Present:- Mr.Rajesh Lamba, Advocate, for the petitioner. Mr.Harmeet Singh Deol, Addl.A.G., Haryana. * * * * S.S. SARON, J. Heard counsel for the parties. The petitioner seeks regular bail in a case registered against him on 10.10.2010 for the offences under Sections 363, 366, 376, 120-B IPC, at Police Station Surajkund, Faridabad. The FIR, in the case, has been registered on the complaint of Rashid on 10.10.2010. It is alleged that his daughter (prosecutrix) aged 13 years was studying in VIIth Class in school. She had gone to the house of Haji Hamida for learning Urdu. On 05.10.2010, after the school, like everyday, at about 1.00 p.m., the grand daughter of Haji Hamida namely Seenat called the daughter (prosecutrix) of the complainant and she went along with her. When, daughter of the complainant did not return till evening, then, they went to the house of Hajid Hamida and asked about her (prosecutrix). Haji Hamida informed them that their daughter had not come on that day. The complainant searched for the daughter amongst all the relatives but they could not find her. On 06.10.2010 at about 10.30 a.m., the younger brother of Rashida Crl. Misc. No.M-1665 of 2011 ::2:: (complainant) received a telephone call from Liyakat (petitioner) and he informed that his niece was with him and they need not to try to locate her. The complainant then came to know that Liyakat (petitioner) and his brother Sahid; besides Yunus, Samin and Mustak had enticed the minor daughter of the complainant. The complainant was checking at his own level but he could not find her. The complainant requested that his daughter (prosecutrix) be got released from the custody of the above- named persons. The prosecutrix has got her statement recorded under Section 164 Cr.P.C., in which she stated that on 05.10.2010 at about 11.00 a.m., she went from her house to STD booth and called up Liyakat (petitioner). The petitiner came on his bike and she by sitting on the bike went to Delhi. Rishi brought her clothes by bus to Delhi. Thereafter, he met them. Liyakat gave his bike to Rishi and took the clothes. The prosecutrix and Liyakat went to India Gate, Delhi and they sat till 5.00 p.m. And kept on talking amongst themselves. From there, they reached Nizamudin railway station and took a train for Bangalonre on 08.10.2010. When they reached Bangalore, they took a room of hotel and stayed there. On the night of 08.10.2010, it is allged by the prosecutrix that she and Liyakat (petitioner) had physical relations with their will then from 08.10.2010 till 13.10.2010, they had physical relations sometimes in the day and sometimes in the night as they were to marry and that is whey, she did not have any problem. On 14.10.2010, they took a flight from Bangalore for Delhi because family of the prosecutrix had assured her that they would get her married when she comes back. Whey they (prosecutrix and the petitioner-Liyakat) got down at Delhi then uncle of the prosecutrix namely Khubi and Sarfu along with two police persons and one unknown person met them and took them to the Police Station. It is stated that she Crl. Misc. No.M-1665 of 2011 ::3:: wants to marry Liyakat. The prosecution case is that the minor girls of the complainant had been enticed and she was less than 13 years of age. Learned counsel for the petitioner has, however, referred to the birth certificate (Annexure P-1) issued by the Faridabad Municipal Corporation, Faridabad, in which the date of birth of the prosecutrix is mentioned as 09.07.1992. Therefore, it is submitted that she was more than 18 years of age at the time when she went with the petitioner. In response, learned counsel for the State has submitted that the prosecutrix is less than 18 years of age and the Principal, Adarsh Public School, Faridbad, has verified that the date of birth of the prosecutrix is 02.0.1998 and she was a VIIth Class student. I have gien my thoughtful consideration to the matter, it may be noticed that the question of age as to whether the prosecutrix was a major or minor at the time when she went along with the petitioner to Bangalore, is to be considered and gone into by the learned trial Court after evidence is led. According to the learned counsel for the petitioner, the date of birth of the prosecutrix is 09.07.1992 as per the birth certificate (Annexure P-1) issued by Fardabad Municipal Corporation. According to the prosecution, the date of birth of the prosecutrix is 02.03.1998 and she was studying in VIIth Class. It is, however, admitted position that no rediological examination has been got conducted to determine the age of the prosecutrix. The trial in the case is likely to take time. The prosecutrix, in any case, has not reached the age of discretion it cannot be ruled out that she was aware of what she was doing; besides, in terms of the statement of the prosecutrix under Section Crl. Misc. No.M-1665 of 2011 ::4:: 164 Cr.P.C., she had gone with the petitioner on her own. In the facts and circumstances, the petitioner, on his furnising personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, shall be admitted to bail. However, nothing stated herein shall be construed as an expression of opinion on the merits of case and the learned trial Court shall consider the evidence and material adduced before it uninfluenced by any observation made hereinabove. The criminal miscellaneous petition stands disposed of. (S.S. SARON) February 17, 2011 JUDGE sukhpreet