IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.290 of 2008 Decided on: May 09, 2008. Rajesh Saini …Petitioner. VERSUS State of Himachal Pradesh ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1Yes For the Petitioner: Mr Hemant Saini with Mr.Vinod Thakur, Advocates. For the respondent: Mr A.K.Bansal, Addl.A.G. Kuldip Singh, Judge (Oral) This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in F.I.R.No.43 dated 4.2.2007, registered at Police Station, Palampur, District Kangra, under Sections 372, 376 (2)(g) etc. I.P.C. and Sections 5 and 6 of the Immoral Traffic (Prevention) Act, 1956. The respondent has filed the reply. 2. Heard and perused the record. The prosecution case, in brief, is that prosecutrix aged about 14 years used to go to the shop of Pratap Singh to bring ration for home. One day she Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… came in contact with Soma Devi who took her to the house of her daughter Rita Devi at Hara Bagh and convinced her that nothing would happen by doing bad deeds as she had approach up to Deputy Superintendent of Police. Next day Rita Devi met the prosecutrix at Joginder Nagar and asked her to come to Baijnath alone in a bus. The prosecutrix accordingly met Rita Devi who took her to Nagrota to the house of some one where prosecutrix was raped by a man and she became unconscious. Rita Devi gave her Rs.1000 and dropped her at Baijnath and from there the prosecutrix came to Joginder Nagar. On the second occasion Rita Devi took the prosecutrix at Hotel Pops at Gopalpur where another lady Poonam was with her. In that hotel, two persons raped the prosecutrix. Rita Devi again gave Rs.200 and one mobile phone to the prosecutrix. Rita Devi after some days took prosecutrix to Palampur Rest House where again two persons raped the prosecutrix. Rita Devi brought the prosecutrix to Baijnath and gave her Rs.500. Rita Devi threatened the prosecutrix that in case she would disclose these facts to anyone, then she would be kidnapped from her house. As per the prosecution case, the petitioner raped the prosecutrix at hotel Pops. …3… 3. The learned counsel for the petitioner has submitted that the petitioner was arrested on 10.4.2007 and since then he is in custody. He has also submitted that three accused, namely, Rita Devi, Soma Devi and Poonam have already been granted bail by the Court. The learned counsel for the petitioner has submitted that for purposes of this petition even if the age of the prosecutrix is taken less than 16 years in that case also as per prosecution case the petitioner at the most had consensual sexual intercourse with the prosecutrix as opposed to forcible or deceptive sexual intercourse. He has submitted that for purposes of bail, consensual sexual intercourse with a woman less than 16 years of age cannot be placed at the same pedestal as forcible sexual intercourse against the wish of such woman. The learned counsel for this purpose has relied judgment dated 22.11.2006 passed by learned Single Judge of Punjab & Haryana High Court in Criminal Misc. No.62395-M of 2006 titled as Anil Sethi v. Central Bureau of Investigation. He has also submitted that in her statement under Section 164 Cr.P.C., the prosecutrix has nowhere named the petitioner for having committed sexual intercourse with her. He has also submitted that the statement of the prosecutrix has already been recorded during trial …4… and, therefore, continuous detention of the petitioner is not required. In these circumstances, he has prayed that petitioner may be released on bail who is ready to furnish requisite bonds. 4. The learned Additional Advocate General has opposed the bail application on the grounds that it has come on record during investigation that date of birth of the prosecutrix is 10.6.1992, therefore, at the time of commission of offence the prosecutrix was about 14 years of age. He has submitted that an innocent girl of tender age was pushed into flesh trade by the accused persons. The learned Additional Advocate General, on instructions received from Shri Gambhir Chand Thakur, A.S.I. Police Station, Palampur, who was present in the Court, has submitted that the learned trial Judge after framing the charge has recorded the prosecution evidence and now the next date of hearing in the trial Court is fixed on 23.5.2008. The learned Additional Advocate General has heavily relied on the statement of prosecutrix (PW-7) which she has given in the trial. He has submitted that prosecutrix has specifically stated in her statement in the trial Court that she was taken by Rita Devi to hotel Pupus (Pops) Chachiya Gopalpur after 2/3 days from Chaudhary Cottage. She along with Rita Devi stayed in Room No.201 and …5… Harjinder Sardar and Rajesh Saini (petitioner) stayed in Room No.202 in Pops hotel where she was raped by Harjinder Sardar and Rajesh Saini. She has also stated that on 16.4.2007 she identified Harjinder Sardar and Rajesh Saini in District Jail, Dharamshala. 5. Rape has been defined in Section 375 IPC, relevant part of the definition of rape is reproduced herein-below:- “375. Rape.-A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- Xxx xxx xxx Xxx xxx xxx Sixthly.- With or without her consent, when she is under sixteen years of age.” The learned counsel for the petitioner has contended that consensual sexual intercourse with a woman under 16 years of age is to be distinguished from the forcible sexual intercourse with such woman. The definition of rape does not draw such distinction when the woman is under 16 years of age. The consent of a woman under 16 years of age …6… for sexual intercourse is irrelevant as far as commission of offence of rape is concerned. Therefore, even if it is assumed at this stage that prosecutrix had consensual sexual intercourse with petitioner, but keeping in view the age of the prosecutrix which was about 14 years at the time of commission of the offence, the petitioner cannot take advantage of such alleged consensual sexual intercourse with the prosecutrix. It has been submitted that three co-accused have been released on bail but all such co-accused are women. As per the prosecution case, the petitioner participated in the commission of offence, therefore, simply women co-accused have been released on bail he cannot take any advantage from that situation. The learned counsel for the petitioner has relied judgment in Anil Sethi’s case (supra) but certified copy of that judgment has not been placed on record nor it has been shown to the Court at the time of hearing of the bail application. In addition to this, the learned Single Judge in that case has observed that contradictions with respect to the date of birth do raise some degree of doubt as to the age of W-1 who was allegedly below 16 years on the relevant dates. The learned Judge has also observed that witnesses have made improvements in their statements before the CBI over and above …7… those made before the police. The CBI had cited more than 100 witnesses and the trial is, therefore, likely to be protracted, which is not the position in the present case. In the present case, the statement of prosecutrix and other witnesses have already been recorded. The prosecutrix has specifically named the petitioner for having committed sexual intercourse with her. The prosecution has given firm date of birth of the prosecutrix i.e. 10.6.1992, hence, Anil Sethi’s case (supra), relied by the learned counsel for the petitioner is not applicable in the facts and circumstances of the present case. It is well settled that factors for grant of bail are different from the factors which are to be taken into consideration at the time of final decision of the case. 6. In the light of the above discussion, no case for bail has been made out. Accordingly, the application is dismissed. All other pending applications are also disposed of. 7. The observations made in the order shall not be construed as expression of opinion on the merits of the case. May 09, 2008 ( Kuldip Singh ), J. (soni)