IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.M.P.(M) No. 10 of 2011 Date of decision : 14.01.2011. ____________________________________________________________ Kamal Dev …Petitioner. Versus State of Himachal Pradesh . …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? 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 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 149 of 2010 dated 25.7.2010 registered at Police Station, Ghumarwin, under Sections 376, 506 and 34 IPC. 2. It has been stated that on 25.7.2010 prosecutrix has lodged a report at Police Station, Ghumarwin that on 13.7.2010 one Kakku called her on phone and asked her to come on the road. The prosecutrix reached the road, Kakku came there in a car and took her to Kandrour where Bikku was waiting for them. Kakku and Bikku took the prosecutrix inside the room in the tower and forcibly without her ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 consent performed sexual intercourse with her and made her to stay for three days. 3. It has been alleged that after three days, Kakku dropped her at Berthin where Annu took her in his jeep to Shatalai in the hotel and performed forcible sexual intercourse with her for five days. It has been alleged that from Shatalai, she was taken by Banti to Shimla where she was raped for four days in a hotel. On 23.7.2010 she was dropped at Berthin bus stand by Banti. On the report made by the prosecutrix, FIR No. 149 of 2010 was registered on 25.7.2010 at Police Station, Ghumarwin. The petitioner was arrested and was lateron remanded to judicial custody. 4. The petitioner alongwith other accused had approached the court of learned Additional Sessions Judge, Ghumarwin, Camp at Bilaspur, for grant of bail but their bail application has been dismissed on 30.11.2010. The petitioner thereafter filed Cr.M.P.(M) No. 1371 of 2010 which was withdrawn on 13.12.2010. 5. The petitioner has filed the bail application on the ground that petitioner has been falsely implicated in the case, he belongs to respectable family. The petitioner is innocent, there is no apprehension of his fleeing from justice. The prosecutrix made a statement under Section 164 Cr.P.C. in which she has completely changed the story which clearly contradicts the case set up by the prosecutrix in the FIR. The age of the prosecutrix is doubtful. 6. The personal custody of the petitioner is not required in the case nor any recovery is to be made from him. There is no 3 evidence against the petitioner. The petitioner undertakes to abide by any condition imposed by this Court in case bail is granted to him. 7. The bail application has been opposed by the learned Additional Advocate General on the ground that the prosecutrix was below 16 years on the date of occurrence. According to the prosecution, the date of birth of the prosecutrix is 5.8.1994. The petitioner has earlier filed two bail applications in which relief was not granted to the petitioner. There is no change of circumstance. The charge has been framed in the case against the petitioner on 24.12.2010 and now the case is fixed for prosecution evidence on 21.2.2011 to 28.2.2011. The petitioner has committed serious offence and, therefore, he is not entitled to bail. 8. I have heard the learned counsel for the parties and have also gone through the police file. The learned counsel for the petitioner has submitted that there are material contradictions in the FIR recorded at the instance of the prosecutrix and her statement made under Section 164 Cr.P.C. He has submitted that petitioner is innocent and has committed no offence. The age of the prosecutrix is doubtful. The certificate which the prosecution is relying in support of the age of the prosecutrix is of one Anita Devi. However, according to prosecution, Anita Devi is the alias name of prosecutrix. The petitioner has earlier filed bail application which was rejected by the learned Additional Sessions Judge (FTC), Ghumarwin, Camp at Bilaspur on 30.11.2010. The petitioner thereafter filed another bail application in this court which was withdrawn on 13.12.2010. There is no change of circumstance after the withdrawal of bail application on 13.12.2010. 4 Moreover on 24.12.2010 charge has been framed against the petitioner and the case is now fixed for prosecution evidence. 9. The learned counsel for the petitioner has submitted that there are material contradictions in the First Information Report and the statement of the prosecutrix recorded under Section 164 Cr.P.C. The trial Court will go into this question during trial. On the basis of material collected by the prosecution, prima-facie the prosecutrix was below 16 years at the time of alleged occurrence. The petitioner is involved in a serious case and hence, he is not entitled to bail at this stage. Accordingly, the application is dismissed. 10. The observations made in this order are for disposal of bail application only and the same shall not be construed as expression of opinion on the merits of the case. January 14, 2011 . ( Kuldip Singh ) (GR) Vacation Judge.