1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 1018 of 2011. Date of decision: 15.12.2011. Sher Singh, son of Shri Mangal Chand, Resident of : Village and Post Office Larkenelo, Tehsil and District Kullu, Himachal Pradesh. Presently confined in Judicial custody in Sub Jail, Kullu, Himachal Pradesh. ......Petitioner. Versus State of Himachal Pradesh Through Secretary Home, Government of Himachal Pradesh, Shimla, Himachal Pradesh. ......Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Anoop Chitkara, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General with Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh , Judge( Oral). This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 170/2011 dated 16.06.2011, registered at Police Station, Manali, under Section 376 IPC. 2. It has been stated that petitioner has been arrested on 16.06.2011 and since then he is in custody. It has been stated in the application that prosecutrix has alleged that accused made her to consume a liquid substance and thereafter she felt numbness in her limbs and she was unable to move. This statement indicates that liquid 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 substance was having therapeutic properties which could be sedative causing hallucination. The allegation is that prosecutrix was subjected to sexual intercourse 2-3 times. The medical report of the prosecutrix provides that hymen is intact admitting one finger with great difficulty. It has been stated that in this backdrop it is hard to accept that the prosecutrix was subjected to sexual intercourse. The prosecution story is highly improbable and suspicious. 3. The investigation in the case is complete. The family of the petitioner is suffering due to confinement of the petitioner. There is no justification to keep the petitioner in jail. It has been stated that petitioner filed bail application which has been dismissed by learned Sessions Judge, Kullu, on 20.10.2011. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. The prayer has been made for releasing the petitioner on bail. 4. The status report has been filed. It has been stated that case has been registered on the application of prosecutrix, who came to Police Station on 16.06.2011 along with her mother. She has stated that Sher Singh 'Tantrik' is her neighbour. On 12.06.2011, he met her near her residence at 5.00 p.m. The mother of the prosecutrix had shown her face to Sher Singh as she has white patches on her face. Sher Singh assured that with the help of knife and 'Mantras', he would remove the white patches and asked prosecutrix to come to his residence 7.00 a.m. along with seven lemons. He told that the prosecutrix will have to stay there till 5.00 p.m. 5. On 14.06.2011 prosecutrix accordingly went to the residence of Sher Singh. He made the prosecutrix to sit in 'pooja' room 3 and gave her some liquid after doing 'pooja'. Sher Singh told prosecutrix that after drinking liquid, she would get loose motions and vomits as well as pain below navel. After some time, prosecutrix vomitted and also passed motions, she also felt pain below navel and her no organ was moving. Sher Singh took the prosecutrix inside the room and closed the door. There was none in the house. Sher Singh removed her trousers and pressed her private part and asked her whether she was feeling something. The prosecutrix answered in negative. Sher Singh said that the opening of her uterus is closed. Sher Singh said that earlier also he had opened the uterus of 2-3 girls. Sher Singh thereafter committed forcible sexual intercourse twice, thrice with the prosecutrix. Sher Singh said that if she would disclose this to anybody, then white patches will spread over her entire body and she would not get any relief from the treatment he had given. On 15.06.2011 at about 8.00 p.m., she disclosed the incident to her mother. She came to Police Station along with her mother and brother and requested for her medical examination. 6. The petitioner was arrested on 16.06.2011 and was got medically examined. The doctor on the MLC of prosecutrix on the basis of F.S.L. Report has given the opinion that there is no evidence that intercourse had occurred. The date of birth of prosecutrix is 04.08.1994 and on 14.06.2011 she was 17 years, 9 months and 19 days. The submission has been made for rejection of the bail application. 7. I have heard learned counsel for the petitioner and learned Additional Advocate General and have also perused the police file. The learned counsel for the petitioner has submitted that as per the MLC of the prsoecutrix, the doctor has opined that there is no evidence that 4 intercourse had occurred. The learned counsel for the petitioner has submitted that in the medical of the prosecutrix, the doctor has observed hymen intact allowing one finger with difficulty. He has also submitted that as per Investigating Agency some liquid was given to the prosecutrix and after drinking that liquid, numbness developed in her body. He has submitted that possibility cannot be rule out what prosecutrix has stated is the result of hallucination. According to the learned counsel for the petitioner, there is nothing on record to suggest that petitioner has committed forcible sexual intercourse with the prosecutrix. 8. The prosecutrix in the complaint has stated that petitioner has committed forcible sexual intercourse with her twice or thrice. The intact hymen does not mean that under no circumstance when hymen is intact, then rape is not possible. These finer details will be considered at appropriate stage of the trial. The prosecutrix in her supplementary statements has identified the place where alleged occurrence took place. The honour of a woman is always at stake in a case of present nature. The prosecutrix is 17 years of age. She has named the petitioner for committing forcible sexual intercourse with her. At this stage, there is no reason to disbelieve the statement of prosecutrix for coming to the conclusion that prima facie there is material on record that petitioner has committed an offence punishable under Section 376 IPC by posing himself as a 'Tantrik', who with 'Tantrik' powers can cure the diseases and then committed forcible sexual intercourse with the prosecutrix. The petitioner has failed to make out case for grant of bail. Accordingly, the petition is dismissed. 5 9. The observations made in the judgment are for the disposal of the bail application and shall not be construed as an expression of opinion on the merits of the case. ( Kuldip Singh ), Judge. December 15, 2011. (Krt)