IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.731 of 2008 Decided on: July 23, 2008. Sikander Singh …Petitioner. VERSUS State of Himachal Pradesh ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner: Mr G.D.Verma, Sr.Advocate with Mr.B.C.Verma, Advocate. For the respondent: Mr Anshul Bansal, Addl.A.G. Kuldip Singh, Judge (Oral) This is an application under Section 438 Cr.P.C. for releasing the petitioner on bail in F.I.R.No.66 dated 18.3.2008, registered at Police Station, Nalagarh, District Solan, under Sections 376, 506 and 120-B I.P.C. The status report has been filed by the respondent. 2. Heard and perused the record. The prosecution case, in brief, is that prosecutrix on 18.3.2008 accompanied with her father etc. reported the matter at Police Station that about one year ago she went to the Dargah of Peer Baba along with her younger brother Charan Dass aged about 5 years. Sikandar appeared there, caught Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… hold her from backside and put his hand on her mouth. He forcibly committed sexual intercourse with her. She told him that she would disclose this fact to her parents. On this he said that he would marry her but simultaneously he threatened that in case she would disclose this fact to her parents then he would kill her brother as well as her also. She did not disclose this incident to her parents or anybody else. She knew that Sikandar is in Army and posted somewhere in Jammu. On leave he used to meet her but he would not have sexual intercourse with her. However, he used to tell her that he would marry her. He gave mobile phone to her about seven months ago and he used to talk to her on said mobile. She kept this mobile phone away and had not brought to the notice of her parents. On leave, he used to interact with her and also used to have sexual intercourse with her. In February 2008 Sikandar came on leave and he had twice sexual intercourse with her. On 3.3.2008 he told her that he would come to her room during night and in fact he came to her room at about 12 mid night and stayed with her till 2 a.m. and during this period he had sexual intercourse with her. Thereafter he left the place. At that time also he assured her that he would marry with her. Lastly, on 6.3.2008 he came to her room at about 11.30 p.m. and stayed with her till 3 a.m., during this period he had sexual intercourse with her. On the next day Sikander on telephone told her that he would not marry her. She told him why he had spoiled her life, but he did not agree. She thought her reputation was at stake, therefore, she jumped into a well but she was taken out from the well and was saved. On this she narrated the facts to her parents. On …3… 15.3.2008 Panchayat was called. In the presence of Panchayat Sikander admitted his relations with the prosecutrix but he refused to marry her. Sikander had sexual intercourse with her with the promise to marry but now he has refused. On the statement of prosecutrix, the case was registered. During investigation, the prosecutrix was got medically examined. After the incident accused joined his duty. The accused continued to have sexual intercourse with the prosecutrix from 2007 with the promise that he would marry her and lastly he committed sexual intercourse with prosecutrix on 6.3.2008. On 7.3.2008 the prosecutrix jumped into the well. The accused avoided the investigation for about four months and he was called with great difficulty. 3. The learned counsel for the petitioner has submitted that at the time of registration of case on 18.3.2008, the prosecutrix had disclosed her age 19 years. Therefore, in the year 2007 she was 18 years of age. The learned counsel for the petitioner has submitted that even as per prosecution, the prosecutrix had sexual intercourse with accused for about one year on different occasions. The prosecutrix has even stated that accused stayed with her in her room for hours on different occasions and had sexual intercourse with her during that period. The learned counsel for the petitioner has submitted that the stand of the prosecutrix is enough to conclude that she was willing party for sexual intercourse with the petitioner and in these circumstances no case under Section 376, 506 etc. is made out against the petitioner. The prosecutrix and her parents are now black-mailing the petitioner and therefore, the case has been …4… registered against the petitioner. The learned counsel for the petitioner has submitted that investigation in the case is complete. The petitioner is serving in the Army. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court and no purpose will be served by arresting the petitioner. The petitioner is ready to join the investigation. The learned counsel for the petitioner has submitted for grant of bail to petitioner under Section 438 Cr.P.C. 4. The learned Additional Advocate General has opposed the bail application and submitted that the prosecutrix submitted to the accused under the mis-conception that he would marry her and for that purpose the accused also assured her knowing fully well that even at that stage the accused was giving false promise of marriage to the prosecutrix. The accused under the false promise of marriage had sexual intercourse with the prosecutrix several times and submission of the prosecutrix in these circumstances cannot be termed as consent of the prosecutrix for sexual intercourse with the accused. Therefore, the learned Additional Advocate General has submitted for dismissal of the bail application. 5. I have considered the rival contentions of the learned counsel for the parties. The prosecutrix has stated that accused had sexual intercourse with her for about one year on different occasions on the promise that he would marry her. Lastly, the accused had sexual intercourse with the prosecutrix on 6.3.2008. She has also stated that accused had come to her room during nights and had sexual intercourse with her. She has stated that on 7.3.2008 the accused refused to marry her and for that reason she jumped into the …5… well but was saved. At the stage of bail the peeping hole is very narrow. The statement of prosecutrix in the present case at this stage cannot be doubted. She has stated that the accused promised her to marry. In these circumstances, the prosecutrix submitted for sexual intercourse with the accused. The prosecutrix jumped into the well on 7.3.2008 when she was told by accused that he would not marry her. This circumstance cannot be ignored lightly. Therefore, keeping in view the facts and circumstances of the case, the petitioner has failed to make out any case for grant of bail under Sections 438 Cr.PC. Accordingly, the application is dismissed. Interim order dated 15.7.2008 stands vacated. 6. The observations made in the order shall not be construed as expression of opinion on the merits of the case. July 23, 2008 ( Kuldip Singh ), J. (soni)