S.B.CR. MISC. BAIL APPLICATION NO.8036/2008 KHALID HUSSAIN VS. STATE OF RAJ. 23.10.2008 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. NS Dhakar, for the petitioner. Mr. RP Kuldeep,Public Prosecutor for the State. This order governs the disposal of bail application filed under Section 439 of Cr.P.C. by Mr. NS Dhakar Advocate on behalf of the applicant Khadim Hussain pertaining to F.I.R. No. 280/2008 of Police Station Beawar City District Ajmer in the offences under Sections 363, 366 of IPC lateron added Section 376 of IPC. Heard the learned counsel for the petitioner as also the learned Public Prosecutor for the State and perused the material on record. Learned counsel for the petitioners has contended that the prosecutrix Bhagya Shree @ Monti voluntarily accompanied him and went to different places. While drawing my attention to the statements recorded under Section 164 of Cr.P.C , the learned counsel has submitted that the prosecutrix voluntarily married to him. She lived with him as his spouse and now also she was prepared to live with him voluntarily. The learned counsel has also contended that as per the medical jurist of R.N.T. Medical College and Hospital Udaipur, the age of the prosecutrix has been determined to 18 years. Thus, neither the petitioner had coitus with the prosecutrix against her will nor without her consent. He has committed no offence and even the statements recorded under Section 164 of the prosecutrix did not constitute any offence under Section 376 of IPC. Under these circumstances, he deserves to be released on bail. -2- Learned Public Prosecutor appearing for the State has primarily opposed the bail petition primarily on this ground that the prosecutrix was below the age of 16 years on the date of occurrence. While giving her statements under Section 164 of Cr.P.C. she stated her age to be 15 years. Police after the recovery of the prosecutrix got her medically examined with a view to get her age determined from AK Hospital Beawar. The medical jurist of AK Hospital Beawar, on the basis of ossification test, found her age to be of 16 years. The school certificate has not been obtained by the Investigating Officer from the school where she was studying earlier. However, the prosecutrix has categorically stated in her statements given under Section 164 of Cr.P.C that the petitioner had coitus with her against her will and without her consent and hence his bail petition be dismissed. Having considered the submissions advanced by both the parties and scanned the relevant material available to me including her medical certificates pertaining to the determination of her age, without expressing any opinion on the merits of the case, I keeping in view the facts and circumstances and the gravity of offence, do not feel inclined to grant bail to the accused petitioner under Section 439 Cr.P.C. In the result, the bail petition filed on behalf of the accused petitioner under Section 439 of Cr.P.C. stands dismissed. (MAHESH BHAGWATI)J. PCG