IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.M. No.72 of 2008. Date of decision: 27.2.2008. Rajesh Rana ….. Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. R.K.Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. 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. 241 of 2007, dated 2.12.2007, registered at Police Station, Dharamshala, under Sections 376, 420, 406, 493 IPC. The notice of the application was given to the State and the learned Additional Advocate General has filed the report. 2. Heard and gone through the record. 3. It has been submitted on behalf of the petitioner that on the application of one Meenakshi Sharma, under Section 156 (3) Cr. P.C. and in pursuance to the directions of learned Chief Judicial Whether the reporters of the local papers may be allowed to see the Judgment? …2… Magistrate, Dharamshala, an FIR No. 241 of 2007 was registered against the petitioner. The petitioner was arrested on 4.12.2007 and since then he is in custody. The petitioner has been falsely implicated by the prosecutrix. The petitioner is 26 years of age, whereas the prosecutrix is educated, widow and in service. She is 43 years of age and having two children. The petitioner never made any promise of marriage to the prosecutrix. It has been submitted that as per the case of the prosecution, the petitioner and the prosecutrix were meeting for the last so many years and prosecutrix voluntarily, freely made sexual relations with the petitioner and she also gave some money to the petitioner for business. It has been submitted that from the allegations of the prosecutrix and the material collected during investigation, no case is made out against the petitioner and he is entitled to bail. 4. Mr. A.K.Bansal, learned Additional Advocate General has opposed the bail application and has submitted that prosecutrix submitted her body to the petitioner under the false promise of the petitioner to marry her and she was duped by the petitioner to the extent of Rs.11,00,000/-. The petitioner has committed the offence systematically and has cheated the lady, right from very beginning he had no intention to marry the prosecutrix, his aim was to have sexual relations with the prosecutrix and to extract money from her. 5. The petitioner is about 26 years of age, whereas the prosecutrix is about 43 years widow having two children and is also in service. It is reasonable to infer that prosecutrix was aware of the fact that there is a difference of 17 years of age between her and the …3… petitioner and because of this age difference and prosecutrix being widow with two children therefore, in normal circumstances the marriage of the prosecutrix with the petitioner is not possible. In the report submitted it has been stated that at one stage prosecutrix herself refused for the marriage and told the petitioner that she was having two minor children. Therefore, at this stage it is reasonable to infer that physical relations between the prosecutrix and the petitioner were consensual. The consent given by the prosecutrix to sexual intercourse with a person on a promise that he would marry her on a later date cannot be said to be given under misconception of fact. [See: Uday vs. State of Karnataka, 2003 (4) SCC 46 ]. The relationship between the petitioner and the respondent continued for long period. It is quite possible that due to that relationship the prosecutrix agreed to help the petitioner financially, but that does not mean that petitioner took the financial help from the prosecutrix by deceitful means. In the facts and the circumstances of the case, the petitioner has made out a case for grant of bail, under Section 439 Cr.P.C. Accordingly, the application is allowed and the petitioner is ordered to be released on bail in FIR No. 241 of 2007, dated 2.12.2007, registered at Police Station, Dharamshala, under Sections 376, 420, 406, 493 IPC on his furnishing personal bond in the sum of Rs.25000/- with one surety of the like amount to the satisfaction of learned Chief Judicial Magistrate, Dharamshala with the conditions that he shall not hamper the investigation or tamper with the prosecution evidence in any manner. …4… 6. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case. 7. Dasti copy on usual terms. February 27, 2008. ( Kuldip Singh ) (Hem) Judge.