IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.539 of 2009 and Cr.MP(M) No.540 of 2009 Date of decision: 7.7.2009 1.Mohmmad Yakub …. Petitioner Vs. State of H.P. …. Respondent _________________________________________________________ 2. Ali Hussain & Ors. ..Petitioners Vs. State of H.P. ….Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner(s) :Mr. Ajay Kumar , Advocate. ( In both the petitions) For the Respondent : Mr. Anshul Bansal, Additional Advocate General. ( In both the petitions) Kuldip Singh, Judge. (Oral) This order shall dispose of Cr.MP(M) No.539 of 2009 and Cr.MP(M) No.540 of 2009, both having arisen from FIR No.110 dated 15.6.2009 registered at Police Station, Bhunter, Distt. Kullu under Sections 363, 366, 376, 342, 506 and 34 IPC. Cr.MP(M) No.539 of Whether the reporters of the local papers may be allowed to see the Judgment? yes 2 2009 has been filed by Mohmmad Yakub whereas Cr.MP(M) No.540 of 2009 has been filed by Ali Hussain and others. The status report has been filed in Cr.MP(M) No.539 of 2009, heard and perused the record. 2. The prosecution case in brief is that on the basis of written complaint dated 10.6.2009 of prosecutrix, FIR No.110 dated 15.6.2009 has been registered at Police Station, Bhunter. The prosecutrix in her written complaint has stated that they are six brothers and sisters, out of them three are sisters. On 13.7.2008 at about 1.30. p.m. Yakub Mohmmad, Ibrahim, Liaquat Ali came to her while she was washing clothes at the confluence of river Beas and Gadsa Khad, Yakub Mohhamad gave her promise of marriage. She refused, they threatened to kill her and out of fear she accompanied Mohmmad Yakub to Jogni (Jhiri, District Mandi ) where Meer Hussain and Liaquat Ali were present. They took her to village Duddar in private Alto car. 3. On 13.7.2008 Yakub made her to stay with him in a house at Duddar. On 14.7.2008 Ibrahim brought two affidavits showing the marriage of Yakub and Salma. Yakub got signatures of the prosecutrix in the affidavit of Salma by showing her that she had married with Yakub. Yakub Mohmmad against her wish put pressure on the prosecutrix for marriage. He performed forcible sexual intercourse with the prosecutrix without her consent. Yakub kept the prosecutrix in the house of Gulzar at Ner Chowk for about two months. On 22.7.2008 Yakub Mohmmad took the prosecutrix to 3 Pandoh where they stayed in a hotel. On the next day Meer Hussain brought one paper already prepared on which they got the signatures of prosecutrix forcibly, the prosecutrix came to know later on that Yakub and Meer Hussain had conspired to make a false report, a copy of said report they had given to Pardhan Gram Panchayat. Meer Hussain in presence of Gram Panchayat, Rot on 22.7.2008 admitted that Yakub had kidnapped the prosecutrix. Meer Hussasin agreed that he will produce prosecutrix and Yakub before the Panchayat within a week, but Meer Hussain did not produce the prosecutrix before the Panchayat but a reply on behalf of the prosecutrix was sent by post to the Panchayat which was purportedly signed by her. The said reply was not prepared by the prosecutrix nor she was allowed to read over the same. 4. The prosecutrix was kept for three months at Bilaspur (Baken) in the house of Saffi Mohmmad. On 25.12.2008 Yakub took her to Gazipur, Tehsil Nandpur, District Ropar (Punjab). On 16.3.2009 Yakub left for Mandi on the pretext of some work and told that he would come back in 2/3 days. She was all alone during night, Liaquat Ali entered her room and committed forcible sexual intercourse with her against her wish. He threatened that he would kill the prosecutrix in case she would disclose the incident to anyone, however, the prosecutrix narrated the incident next day to Nazar Bibi who laughed at her and told that prosecutrix had been brought to please Yakub and Liaquat Ali. Liaquat Ali continued to have forcible sexual intercourse with prosecutrix for three days. Yakub returned 4 on 4th day and she disclosed the incident to him, on this Yakub told that marriage was only an excuse. He and Liaquat Ali were not satisfied with their wives. Yakub had tortured her physically and mentally. 5. The prosecutrix wanted to escape but could not escape and she did not get an opportunity to escape from his place. On 20.3.2009 Yakub and Liaquat Ali went to Ner Chowk, she accompanied them. On 20/21.3.2009 they stayed at Ner Chowk in the house of Gulzar. At that place also Yakub and Liaquat Ali had committed forcible sexual intercourse with her. She was helpless. She could not disclose to others out of fear. On 22.3.2009 in their absence she ran away and went to Kullu. She was so much confused and perplexed with the incident that for about 2 ½ months she did not disclose the incident to anyone. She had no courage to narrate the incident to her parents. When her parents persuaded her to disclose the reasons for her problem then she disclosed the incident to her parents and reported the matter to the police. 6. The prosecution during investigation has arrested Meer Hussain and Ibrahim, according to prosecution case under Sections 363, 366, 376, 342, 506 , 120-B and 34 IPC is made out against Mohmmad Yakub and Liaquat Ali. Case under Sections 363, 366, 342, 120-B IPC is made out against Ali Husssain, case under Sections 342, 120-B, 34 IPC is made out against Nazari. It has come during investigation that Mohmmad Yakub and Liaquat Ali had committed forcible sexual intercourse with the prosecutrix. The 5 accused in connivance with each other took the prosecutrix on the pretext to marry her. Learned counsel for the petitioners in both the cases has submitted that the case against petitioners is false. He has submitted that Razia sister of prosecutrix got married with the Chacha of Mohmmad Yakub in August, 2008 and during this period both the families met each others. The prosecutrix is major and her date of birth is 25.5.1990. The petitioners are ready to join the investigation and they are ready to furnish bail bonds in accordance with the directions of this court. The learned counsel for the petitioners in both the petitions have prayed for grant of bail to the petitioners under Section 438 Cr.P.C. 7. The petition has been opposed by learned Addl. Advocate General on the grounds that petitioners have committed serious offence. The prosecutrix was kidnapped by the accused in conspiracy and in connivance with each other on the pretext of marriage. Thereafter even some papers of marriage were also prepared. Accused Mohmmad Yakub and Liaquat Ali had committed forcible sexual intercourse with the prosecutrix against her wish. The prosecutrix was put under threat of life. She was confused perplexed and did not disclose the incident even to her parents for some time and only on great persuasions of the parents she narrated the incident to her parents and thereupon she filed the written complaint to the police. The case is under investigation. The two accused Meer Hussain and Ibrahim have already been arrested. The accused are to be interrogated and therefore, their custodial 6 interrogation is necessary. Simply because prosecutrix is above 18 years of age that does not mean that sexual intercourse was committed with her consent. The prosecutrix has denied the consent and during trial it will come out whether the sexual intercourse was committed with or without consent. 8. I have considered the rival contentions of learned counsel for the parties. The prosecutrix has named Mohmmad Yakub and Liaquat Ali for committing forcible sexual intercourse with her. The allegations against petitioners Ali Hussain and Nazari in Cr.M.P(M) No.540 of 2009 are of different nature. 9. In the facts and circumstances of the case, I am of the opinion that at this stage petitioner Mohmmad Yakub in Cr.MP(M) No.539 of 2009 and petitioner Liaquat Ali in Cr.MP(M) No.540 of 2009 are not entitled to bail. Accordingly, Cr.MP(M) No.539 of 2009 is dismissed. The petitioners Ali Hussasin and Nazari in Cr.MP(M) No.540 of 2009 have made out a case for grant of bail under Section 438 Cr.P.C. Cr.MP(M) No.540 of 2009 is partly allowed. Petitioner No.1 Ali Hussain and petitioner No.2 Nazar in Cr.MP(M) No.540 of 2009, in the event of their arrest in FIR No. No.110 dated 15.6.2009 registered at Police Station, Bhunter, District Kullu are ordered to be released on bail on their furnishing personal bonds in the sum of Rs.10,000/- each with one surety each of the like amount to the satisfaction of Arresting Officer. These petitioners shall join the investigation as and when called by the Investigating Officer. The concerned Investigating Officer shall interrogate petitioner 7 Nazari, a woman strictly in accordance with law. They shall not hamper the investigation and tamper with the prosecution evidence in any manner. Cr.MP(M) No.540 of 2009 as regards petitioner No.3 Liaquat Ali stands dismissed. 10. The observations made in this order are for disposal of this application and these shall not be treated as expression of opinion on the merits of the case. Copy Dasti ( Kuldip Singh) Judge July 7, 2009 (sks) 8 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P(M) No. 540 of 2009. Date of decision: 7.7.2009 Ali Hussain & Ors. ..Petitioners Vs. State of H.P. ….Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? For the petitioners : Mr. Ajay Kumar , Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). For judgment, see judgment of date rendered in Cr.M.P(M) No. 539 of 2009 titled Mohmmad Yakub vs. State of H.P. ( Kuldip Singh) Judge July 7, 2009 (sks)