1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 1044 of 2011. Date of decision: 20.12.2011. Kunga Dechan, S/o Shri Devi Singh, R/o Village & P.O. Hango, Sub Tehsil Hangrang, District Kinnaur, H.P. ......Petitioner. Versus State of Himachal Pradesh. ......Respondent. Application under Section-438 of the Code of Criminal Procedure for grant of pre arrest bail in connection with case FIR registered at Police Station, Bhunter, District Kullu, H.P. Under Section 376 of Indian Penal Code. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. N.S.Chandel, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh , Judge( Oral). This is an application under Section 438 Cr.P.C. for releasing the petitioner on bail in FIR No. 233 dated 07.12.2011, registered at Police Station, Kullu, under Sections 376, 506, 120-B IPC. 2. It has been stated that prosecutrix and petitioner were known to each other and on 03.10.2011 they got married. The prosecutrix had attained the age of majority on the date of marriage. The prosecutrix and petitioner started living together. 3. It has been stated that when prosecutrix did not reach her 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 parental house for two days, her parents lodged a missing report at Police Station, Dhalli, Shimla. The petitioner and prosecutrix were called at Police Station, Dhali on 06.10.2011 where statements of both of them were recorded. The prosecutrix in her statement has specifically stated that she has attained the age of majority and had married with the petitioner of her free will and was residing with him. She refused to go with her parents, she continued to remain with the petitioner. The petitioner and prosecutrix thereafter started living at Kullu till first week of December, 2011. The prosecutrix met her parents and started living with them. The prosecutrix has now lodged the present FIR against the petitioner which is completely false. 4. On account of registration of case, the petitioner apprehends his arrest in the above case. The petitioner is innocent, he has committed no offence. The petitioner is ready to join the investigation and furnish bail bonds in accordance with the directions of this Court. The prayer has been made for releasing the petitioner on bail under Section 438 Cr.P.C. 5. The bail application has been opposed by the State by filing status report. It has been stated that the case has been registered on 07.12.2011 by prosecutrix aged 21 years. The prosecutrix was medically examined on 07.12.2011. The prosecutrix also produced vests of the petitioner which according to the prosecutrix were blood smeared besides semen. These are being sent to F.S.L. for analysis. The prosecutrix has also produced bed-sheet upon which the petitioner committed sexual intercourse with the prosecutrix under the garb of marriage. The prosecutrix has also produced copy of marriage affidavit 3 dated 03.10.2011. It has been stated that petitioner got signatures of prosecutrix on many documents without revealing the contents of documents to the prosecutrix. 6. The prosecutrix has stated that on 02.12.2011 she was forcibly taken to Kullu and she was intimidated to sign the papers and she was asked to take the stand that she had signed those papers of her free will and volition. The prosecutrix stated that during night petitioner committed sexual intercourse thrice with her without her consent. 7. The father of the petitioner is also an accused , but both father and son could not be arrested as they were not found in the village. As per Panchayat record petitioner has not solemnized marriage with prosecutrix. That father of the petitioner had told prosecutrix that her marriage is not acceptable to him. The father of the petitioner threatened that in case the matter is reported to the prosecutrix's parents, then entire family of the prosecutrix would be liquidated. The investigation in the case is still in progress. The petitioner and his father have joined the investigation. The medical examination of the petitioner has been conducted, the blood samples of petitioner have been taken for D.N.A examination. It has been submitted that in view of seriousness of the offence, the bail may not be granted to the petitioner. 8. I have heard both the sides and perused the police file. In the police file, there is a copy of marriage affidavit on 03.10.2011 of prosecutrix in which her age has been given 21 years. It has been stated in the affidavit that she has solemnized marriage with Kunga Dechan aged 21 years ( petitioner) according to local customs on 03.10.2011. 4 This affidavit is attested by Avinash Chandra, Notary Public, Kullu and it also bears the signatures of identifier one Anish Khan. In the police file, there is a copy of divorce deed dated 02.12.2011 between prosecutrix and petitioner vide which they dissolved their marriage dated 03.10.2011. 9. The learned counsel for the petitioner has produced G.D.Entry No. 36(A) dated 05.10.2011 Police Station, Dhalli, which was recorded at the instance of Jai Singh, father of prosecutrix. It has been stated in this report that on 03.10.2011 his wife received a call from prosecutrix disclosing that she had married to Sunny. The prosecutrix in the FIR has stated that on 03.10.2011, the petitioner got prepared false affidavit of marriage. The petitioner forced her to make false statement before the police at Police Station, Dhalli regarding the marriage. 10. As per petitioner, he and prosecutrix got married on 03.10.2011. The marriage has been denied by the prosecutrix. This apart in the FIR the prosecutrix has stated that on 29.09.2011 during night the petitioner under the pretext of marriage 3-4 times committed sexual intercourse with her and this continued up to 02.10.2011. Thus, there are allegations of forcible sexual intercourse by petitioner with the prosecutrix even before the alleged marriage dated 03.10.2011. 11. The prosecutrix has denied the marriage with petitioner. She has stated that on several papers petitioner has obtained her signatures. There are serious allegations against the petitioner regarding forcible sexual intercourse with prosecutrix even from 29.09.2011 to 02.10.2011. In these circumstances, at this stage, the petitioner is not 5 entitled to indulgence of bail under Section 438 Cr.P.C. Resultantly, the petition fails and is accordingly dismissed. 12. The observations made in the judgment are for the disposal of the bail application and shall not be construed as expression of opinion on the merits of the case. ( Kuldip Singh ), Judge. December 20,2011. (Krt)