IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.M. No.136 of 2008. Date of decision: 26.2.2008. Narain Singh & ors. ….. Petitioners. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Ashutosh Burathoki, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). Heard and gone through the record. 2. This is an application, under Section 439, Cr.P.C., for releasing the petitioners on bail, in case FIR No. 10 of 2008, registered on 18.1.2008 at Police Station, Rohru, under Sections 376, 506 IPC. It has been submitted on behalf of the petitioners that case against the petitioners is highly improbable. The petitioners have been falsely implicated in the case due to enmity and with intention to extort money. The petitioner No.1 is 62 years, petitioner No. 2 is 55 years, petitioner No. 3 is 31 years and petitioner No.4 is 28 years of age and all are married. The petitioners were arrested on 19.1.2008 Whether the reporters of the local papers may be allowed to see the Judgment? …2… and since 23.1.2008 they are in judicial custody. It has been submitted that different stories have been given in the FIR and to the doctor who medically examined the prosecutrix. The hymen of the prosecutrix was not ruptured, no injury was found on her person which rules out that she was sexually assaulted by the petitioners. The FIR has been lodged without explaining the delay. The investigation in the case is complete and nothing is to be recovered from the petitioners. The bail application of the petitioners was rejected by Illaqua Magistrate on 23.1.2008. The bail application filed by the petitioners in this court was withdrawn on 1.2.2008. The petitioners filed another bail application which has been rejected by the learned Sessions Judge, Shimla on 13.2.2008. 3. Notice was issued to the respondent and report of the case has been submitted by the learned Additional Advocate General. The date of birth of the prosecutrix is 5.9.1995. On the date of alleged occurrence, the age of the prosecutrix was about 12 years. The FIR was lodged by the prosecutrix alongwith her mother and she has named all the petitioners for committing the offence on different dates. The prosecutrix has also alleged that the petitioners threatened her that in case she would disclose this fact to anyone, then they would kill her and for that reason she did not disclose the incident to her parents. She however, told the incident to Kiran, Reena, Ruchi and Suman girls of the village. She has also alleged that her brother Hanni has also seen Nain Singh committing sexual intercourse with her. Dinesh Kumar committed sexual intercourse with her last time in December. In her statement, under Section 161 …3… Cr.P.C., she has again stated that petitioners had sexual intercourse with her. 4. Usha Dutta the mother of the prosecutrix has stated that she came to know from other women that petitioners had been sexually assaulting the prosecutrix then she inquired this fact from her daughter and the prosecutrix confirmed it. Hanni brother of prosecutrix has stated that about two months ago he had seen Nain Singh committing sexual intercourse with the prosecutrix, but out of fear he did not disclose this fact to his parents. Suman a neighbour of the prosecutrix has stated that about two months ago prosecutrix had told her that the petitioners had been committing sexual intercourse with her but she did not take it seriously as the prosecutrix was just 12 years old. Similarly, Kiran and Ruchi Dutta girls and co- villagers of the prosecutrix have stated that prosecutrix had told them that petitioners had been committing sexual intercourse with her. 5. Learned counsel for the petitioners has submitted that there is variation in the FIR and the facts recorded by the doctor at the time of medical examination of the prosecutrix. He has heavily relied on the fact that as per MLC of the prosecutrix, her hymen was found intact at the time of medical examination. According to learned counsel for the petitioners since the hymen of the prosecutrix was found intact, therefore, there is no question of her being raped by the petitioners. No doubt, for committing the offence of rape penetration is necessary but how much penetration is required for rupturing the hymen it is for the doctor to explain during trial. …4… 6. The learned counsel for the petitioners has also submitted that before the doctor it has been stated by the prosecutrix that petitioners used to try for penetration but could not perform it and then they used to rub their penis on the private part of the prosecutrix. He has submitted that this fact is enough to show that no rape on the prosecutrix was committed by the petitioners. But in FIR the prosecutrix has stated that petitioners had committed `Galat Kaam’ with her and it cannot be said that `Galat Kaam’ is not sexual intercourse, rather in common parlance `Galat Kaam’ is also sexual intercourse. It has been submitted that the petitioners have been falsely implicated at the instance of the mother of the prosecutrix inasmuch as the prosecutrix used to commit small thefts and for that reason she was reprimanded by the petitioners which was not liked by the mother of the prosecutrix. The explanation given on behalf of the petitioners that they have been falsely implicated at the instance of the mother of the prosecutrix is not believable on the basis of the material coming on the record as no mother would involve her daughter in a false case of rape which adversely affects the reputation of the girl and the family. All these details will be examined during the course of the trial. The prosecutrix was about 12 years of age at the time of commission of the offence. There is no question of consent on her part for sexual intercourse with the petitioners. 7. On the basis of material on record, no case has been made out by the petitioners for releasing them on bail at this stage. Accordingly, the application is rejected. …5… 8. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case. February 26, 2008. ( Kuldip Singh ) (Hem) Judge.