Crl.M.No.M-18845 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.M.No.M-18845 of 2011(O&M) Date of Decision: July 6, 2011 Rohit Kumar .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.S.S.Majithia, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) Crl.M.Nos.33303-04 of 2011 Both the applications are allowed subject to all just exceptions. Crl.M.No.M.18845 of 2011 The present petition filed under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in case FIR No.123, dated 27.6.2010, registered under Sections 376, 420 and 506 IPC, at Police Station Salem Tabri, District Ludhiana. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Additional Sessions Judge, Ludhiana, vide which application filed by petitioner for grant of regular bail has been dismissed. This is second application for regular bail filed by petitioner- accused before this Court. Earlier bail application was got dismissed as withdrawn vide order dated 24.12.2010, passed in Crl.M.No.M-38201 of 2010. Crl.M.No.M-18845 of 2011(O&M) -2- Brief allegations against petitioner-accused are that prosecutrix was a student of 10+2 standard and was minor. In the month of January 2010, prosecutrix met petitioner and he insisted her to have love affair with him and promised to solemnise marriage with her and on that promise they started meeting each other. Petitioner developed physical relations with prosecutrix and had been committing rape upon her. When prosecutrix objected, he raised threat that he had already made obscene C.D. of her and he will put that obscene C.D. on internet and due to that threat he had been committing rape upon her. Lateron prosecutrix came to know that petitioner was already married and hence, he made false promise to marry her and on that promise committed rape upon her. It has been contended by learned counsel for the petitioner that he has been continuing in custody for the last about one year and no witness has been examined so far. He has also met with an accident in the month of April 2010 and remained bed ridden. It is further contended that no injury was found as per MLR on the body of prosecutrix. There is no report of DNA profile. He has also placed reliance upon Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar and another, 2007(4) RCR (Criminal) 51. So far as Pradeep Kumar @ Pradeep Kumar Verma's case (supra) is concerned, the same is no help to the petitioner-accused, as the facts of present case are different. In this case admittedly petitioner is married and having children. Hence, prima facie it is shown that he was having no intention to marry the prosecutrix since the very beginning, as he was already married. It has been held by Hon'ble Apex Court in Pardeep Kumar @ Pradeep Crl.M.No.M-18845 of 2011(O&M) -3- Kumar Verma's case (supra) that in view of Section 90 IPC, consent given by a prosecutrix under fear of injury and under misconception is no consent and if it is shown that accused had in fact no intention to marry the prosecutrix since inception, sexual intercourse with the prosecutrix, would not amount to consent of the prosecutrix and accused would be guilty of offence under Sections 375 and 376 IPC by approving the decision rendered in the case of Jayanti Rani Panda v. State of WB, (1984 Crl.L.J. 1535). There are serious allegations against petitioner-accused. Hence, in view of these facts it is not such a case in which bail should be granted to petitioner-accused, at this stage when even prosecutrix has not been examined. Hence, without expressing any opinion on the merits of the case, the present petition filed by petitioner-Rohit Kumar for grant of regular bail is hereby dismissed. 6.7.2011 (Ram Chand Gupta) meenu Judge