IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1069 of 2011 Date of decision: 28.12.2011 Lalit Manta son of Shri Shyam Lal R/o Village and Post Office, Jagtaan, Tehsil Jubbal, Distt. Shimla, H.P. …. Petitioner Vs. State of Himachal Pradesh ….. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner : Mr. Vinay Thakur, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. Kuldip Singh, Judge (Oral). This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 50 of 2011 dated 16.5.2011 registered at Police Station, Rohru, under Sections 376, 506 IPC and Section 3 (12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘Act’). 2. It has been stated that as per the prosecution, the prosecutrix visited Rohru on 14.5.2011 for purchasing books. The petitioner met her and took her to some hotel, where he took a room. The petitioner proposed marriage to the prosecutrix and performed sexual intercourse twice during day time with her. The petitioner and prosecutrix stayed in the hotel in the intervening night of 14/15.5.2011, Whether the reporters of the local papers may be allowed to see the Judgment?yes 2 during night also the petitioner performed sexual intercourse with the prosecutrix twice without her consent. 3. It is also the case of the prosecution that petitioner threatened the prosecutrix not to disclose the incident to anyone otherwise he would kill her. The prosecutrix due to fear did not disclose the incident to anyone, but she narrated the incident to her parents. In this way, the case was registered. 4. It has been stated that the petitioner filed bail application which has been dismissed by learned Sessions Judge, Shimla on1.10.2011. It has been stated that learned Sessions Judge has wrongly dismissed the bail application. There is no evidence that petitioner forcibly committed sexual intercourse with the prosecutrix. 5. It has been stated that petitioner is ready to furnish bail bonds in accordance with the directions of this Court. The further detention of the petitioner is not necessary and prayer has been made for releasing the petitioner on bail. 6. The status report has been filed and the bail application has been opposed. It has been stated in the status report that the case has been registered on the basis of statement of prosecutrix, who came to the Police Post, Saraswati Nagar on 16.5.2011 alongwith her parents. She has stated that she is a student of +2. On 14.5.2011 she had gone to Rohru for purchasing books, at about 11.00 a.m. petitioner met her in Rohru Bazar, who was known to her for the last about one year. On his asking, they took tea in a dhaba and at that time petitioner said that he loves her and would marry her. The petitioner took her to a hotel and booked a room and performed sexual intercourse with her twice against her wish on the pretext that he would marry her. 3 7. It has also been stated that petitioner did not allow her to return to her home and perform forcible sexual intercourse with her during night twice. The petitioner threatened her not to disclose the incident to anyone otherwise he would kill her. On this, case has been registered. The doctor has opined that prosecutrix is not habitual to sexual intercourse and the possibility of recent sexual intercourse cannot be ruled out. The caste certificate of the prosecutrix has been taken into possession. The date of birth of the prosecutrix is 7.5.1994, on the date of occurrence, she was + 17 years. The prosecutrix belongs to Scheduled Caste whereas the petitioner is Rajput. The petitioner has been arrested on 16.6.2011, on completion of investigation, challan has been submitted in the Court on 16.8.2011. In case the petitioner is released on bail, he is likely to terrorise the prosecution witnesses. The prayer has been made for rejection of the bail application. 8. I have heard the learned counsel for the petitioner and learned Additional Advocate General for the respondent and have also gone through the police file. The learned counsel for the petitioner has submitted that without conceding the case of the prosecution it emerges from the prosecution story that prosecutrix remained with the petitioner on 14/15.5.2011 and during this period the petitioner performed four times sexual intercourse with the prosecutrix. The learned counsel for the petitioner has relied Uday vs. State of Karnataka (2003) 4 SCC 46 and Deelip Singh alias Dilip Kumar (2005) 1 SCC 88 in support of his submission that the sexual intercourse with a promise to marry with prosecutrix more than 16 years of age is not rape under Sections 375, 376 IPC. The willingness of the prosecutrix to submit for sexual intercourse was because of her desire for sexual intercourse and not on 4 account of promise of marriage. The prosecutrix was admittedly + 17 years on the date of occurrence, hence it cannot be said that petitioner has committed offence of rape. The learned Additional Advocate General has relied Pradeep Kumar Verma vs. State of Bihar and another 2007 Cri.L.J.4333 on the point that a representation deliberately made by the accused with a view to elicit assent of victim without having the intention or inclination to marry her, will vitiate the consent. The learned Additional Advocate General has submitted that petitioner has committed serious offence, therefore, petitioner is not entitled to bail. 9. The perusal of FIR indicates that prosecutrix remained with petitioner on 14/15.5.2011. It has been stated in the FIR that petitioner committed sexual intercourse twice with the petitioner on 14.5.2011 and during intervening night of 14/15.5.2011, the petitioner again committed sexual intercourse with the prosecutrix twice. In the FIR, it has been stated that petitioner promised to marry the prosecutrix. It is clear from the FIR that petitioner and prosecutrix were known to each other for the last about one year and they had been meeting earlier also. In the FIR, it has not been stated that prosecutrix would not have agreed to accompany and stay with the petitioner if petitioner would not have given the promise of marry. 10. In the status report, it has been stated that on the date of occurrence the prosecutrix was + 17 years of age. There is no allegation of any force used by the petitioner. The prosecutrix of her own went with the petitioner and took tea in a dhaba thereafter she stayed voluntarily with the petitioner in the hotel where room was booked by the petitioner. The prosecutrix was studying in +2 class and she cannot be equated 5 with a rustic girl. She knew what she was doing. The possibility cannot be ruled out that out of emotions, desire and both of them being young, the prosecutrix participated in the sexual act. The finer details will be considered during trial. The petitioner is in custody since 16.6.2011. The trial of the case is likely to take some time. The apprehension of the prosecution that in case petitioner is released on bail he will threaten the prosecution witnesses has not been supported by corroborative material on record. The petitioner has made out a case for grant of bail under Section 439 Cr.P.C. 11. In view of above, petition is allowed. The petitioner is ordered to be released on bail in FIR No. 50 of 2011 dated 16.5.2011 registered at Police Station, Rohru, under Sections 376, 506 IPC and Section 3 (12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on his furnishing personal bond in the sum of ` 50,000/- with one surety of the like amount to the satisfaction of the trial Court with the condition that the petitioner shall not terrorise the prosecution witnesses in any manner and shall not leave the jurisdiction of the State of Himachal Pradesh without the leave of the trial Court. 12. The observations made in this judgment are for disposal of bail petition only and the same shall not be construed as an expression of opinion on the merits of the case. Copy dasti. December 28, 2011. ( Kuldip Singh), (GR) Judge.