IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No. 115 of 2011 Judgment reserved on 10th March, 2011 Date of Decision 11th March,2011 ________________________________________________________ Sat Pal ….Petitioner. Versus State of H.P. ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ________________________________________________________ For the Petitioner: Mr. Varinder Singh and Mr. Shivank Singh Panta, Advocates. For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy A.G. ______________________________________________________________ Dev Darshan Sud, J This petition has been filed by the petitioner under Sections 439 and 482 of the Code of Criminal Procedure for grant of bail in FIR No. 153 of 2010, dated 1.6.2010 for offences under Sections 363, 366-A, 109 and 376 of the Indian Penal Code. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 2. Prior to this petition, the petitioner had approached the learned Sessions Judge, Kangra at Dharamshala but that petition was withdrawn on 30.9.2010. Subsequently another petition was filed on 9.11.2010. While dismissing the application, by its order dated 4th December, 2010 the learned Additional Sessions Judge, Kangra at Dharamshala noted the fact as presented before him that on 1.6.2010 complainant Garib Dass reported the case to the police at P.S. Indora that the prosecutrix who was aged 15 years 6 months had been missing from 30.5.2010 had disappeared somewhere around 10.45 PM in the night. He also found that Sat Pal was also missing from his house since 30.5.2010 and he had abducted the prosecutrix. On these allegations the FIR was registered against the petitioner. During investigation, the police obtained the date of birth certificate of the prosecutrix which was found to be 4.12.1994. On 25.7.2010 the prosecutrix was recovered from the custody of the petitioner at Dassuya, Distirct Hoshiarpur. It was alleged that prosecutrix refused to get herself medically examined on 25.7.2010 although the petitioner was subjected to medical examination. The custody of the prosecutrix was handed over to her parents. 3. The prosecution case is that the prosecutrix had been taken away from the lawful guardianship of the parents with the intention to force her to marry the petitioner. One Darshna who was co-accused with the petitioner had encouraged the prosecutrix and forced her to live with the petitioner. In Cr.MP(M) No. 825 of 2010 Darshna Devi was admitted to bail vide order of this Court dated 6th August, 2010 on the statement 3 having been made by the prosecution that custodial interrogation of this co-accused was not required. Later on the prosecutrix was medically examined on 2.9.2010 and it is stated by the prosecution that offence of rape is established. The case putforth by the petitioner before the trial Court was that he was falsely implicated and that prosecutrix being major, was a consenting party. One another allegation was made that she had married the petitioner and therefore, no offence was made out. In other words, consensual relations do not and cannot form the subject matter of rape as the petitioner has married. The learned Court on the material collected before it observed that there is nothing on record to show that the petitioner had actually married the prosecutrix. According to birth certificate, she was below 16 years of age. In these circumstances, the application was dismissed. 4. I have heard learned counsel appearing for the petitioner. The petitioner has now approached this Court under Section 439 Cr.P.C. for grant of bail. Learned counsel appearing for the petitioner has argued that the Courts belows have been basically swayed by the fact that prosecutrix is minor which fact is yet to be established on record. Learned counsel submits that on 25.7.2010 when the prosecutrix was recovered she was taken for medical examination which she and her father declined. Subsequently, the second medical examination was carried out on 2.9.2010. During this period, the petitioner obviously had no access to the prosecutrix and the medico legal certificate would have no meaning and cannot be used against the petitioner. Learned counsel then submits that continued detention of the 4 petitioner would amount to punishment before trial, more especially when allegation regarding rape is yet to be proved by way of evidence. 5. Learned Additional Advocate General has opposed the application on the ground that the prosecutrix is minor and she has been kidnapped and subjected to sexual intercourse without consent which by itself would amount to rape. 6. I have considered the submissions made on behalf of the learned counsel appearing for the parties. It is strange that on 25.7.2010 when the prosecutrix was recovered from the custody of the petitioner in Hoshiarpur and was taken to hospital but both her father and she declined medical examination. So far as the second medical examination in September, 2010 is concerned, it shows mature development of sexual characteristics on her body and further opinion of the Doctor was that she is pregnant which requires further medical investigation etc. One fact stands established that between 25.7.2010 and 2.9.2010 when the second medical examination was conducted, the petitioner had no access to the prosecutrix. Her age is yet to be established on the question to determine as to whether she was minor or not. I need not analyse the other material on record. I have also gone through the statement of the prosecutrix and found that the primary case set out was that it was her Chachi Darshna Devi, who already stands admitted to bail, was encourging her to elope with the petitioner. I need not say anything more. 7. The learned Court by relying on Kalyan Chandra Sarkar v. Rajesh Ranjan, 2004(7) SCC 528 and State of U.P. v. 5 Amarmani Tripathi, 2005(8) SCC 21 and Prahlad Singh v. N.C.T. delhi, AIR 2001 SC 1443 has dismissed the bail application. The principles as enunciated in these judgments are well established. However, the learned Court has not given enough attention to the fact situation. Some amount of sifting evidence had to be undertaken before coming to the conclusion as to whether the petitioner was primfacie involved in the case or not. What I find from the orders of the Court below is that it has been swayed by the fact that the prosecutrix is a minor and the pleading that she had consented to sexual relations as also for marrying the petitioner have not been established on record. 8. At this stage, I do not wish to comment on the weakness/strength of the case, either of the State or the petitioner as this would preempt the entire case. However, after considering the totality of the facts and circumstances of the case, I think that it is a fit case where the petitioner can be enlarged on bail more especially what I find from the statement of prosecutrix herself is that she states that it was Darshna Devi who had told her to ask the petitioner to take her with him. If her statement is read as a whole, it shows that she was asked by this Darshna Devi to coherence Sat Pal and to elope her otherwise she would commit suicide by consuming poison and on the date when she went with the petitioner, she in fact had a tablet of Sulpher Phosphet in her hand. I do not find anywhere in her statement where she states that the petitioner actually forced her to have sexual relations. This is an important aspect which should and ought to have been considered by the Court below as also the fact that the age of prosecutrix is yet to be established 6 and that she and her father had declined for medical examination on 25.7.2010 when she was recovered. 9. I may also note that the learned counsel has relied upon the decision of the Supreme Court in Krishan Lal vs. State of Haryana AIR 1980 SC 1252 to urge that ingredients of rape have not been established and in any event the birth certificate as held in Alamelu and another vs. State (2011) 1 SCC (Cri) 688 cannot be taken as conclusive. Learned counsel also relies on the decision of the Punjab and Haryana High Court in Krishan Singh vs. State of Haryana 2004(3) Criminal Court Cases 59 (P&H) to urge that ingredients of rape have not been established. These cases pertain to proof of facts after leading evidence and cannot be used primafacie for discarding what the prosecution has brought on record. 10. Learned counsel also relies upon the decision of Orissa High Court in Deepak Mohapatra vs. State of Orissa, 2009(3) Criminal Court Cases 108 (Orissa) to urge that determination of guilt should not be made prior to the grant of bail. These decisions are confined to their own facts. 11. Considering the totality of the facts and circumstances of the case, it would be in the fitness of things in case the directions are issued that the petitioner be admitted to bail subject to his furnishing a personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge Kangra at Dharamshala. For this purpose, the surety should be a resident of Kangra; The bail is also subject to the following conditions: 7 (i) that the petitioner shall undertake to appear and be present in Court on each and every date of hearing of the case unless so exempeted by the trial Court in accordance with law; (ii) that the petitioner shall not in any manner either directly or indirectly, personally or through any person tamper with the prosecution evidence or in any manner try to overawe, influence or threaten the prosecution witnesses or obstruct them to appear in Court; (v) He shall not abscond from the jurisdiction of the learned Sessions Judge, Kangra at Dharamshala nor will obstruct the progress of the trial; (vii) He shall also join the investigation, if so required; (viii) The petitioner shall abide by the orders of the Court and shall also report to the police; (ix) In case of violation of any of the conditions imposed, he shall be arrested forthwith without reference to Court. It will be open to the prosecution to apply this Court or the trial Court for any such other or further condition imposed on the petitioner as it may deem necessary in the facts and circumstances of the case and in the interest of justice. Petition stands disposed of. March 11th , 2011 (Dev Darshan Sud), ms Judge 8