IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 564 of 2009 Date of decision: July 15, 2009. Ashwani Kumar …..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. N.K. Thakur, Advocate. For the Respondent : Mr. A.K. Bansal, Addl. Advocate General with Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh, Judge (Oral). The petitioner has filed an application, under Section 438 Cr.P.C. for admitting him on bail in FIR No. 213 dated 10.6.2009 registered at Police Station, Paonta Sahib, under Sections 376, 506 IPC. The status report has been filed. 2. Heard and perused the record. The prosecution case in brief is that prosecutrix had filed an application, under Section 156(3) Cr.P.C. before Judicial Magistrate Ist Class, Court No.1, Paonta Sahib for a direction to Station House Officer, Police Station, Paonta Sahib to register a case under Sections 376, 506 IPC against the petitioner. On 9.6.2009, the learned Magistrate sent the complaint to Police station, Paonta Sahib with the direction to register the FIR and to report immediately. In this way, FIR No. 213 was registered on Whether the reporters of the local papers may be allowed to see the Judgment? …2… 10.6.2009, under Sections 376, 506 IPC at Police Station, Paonta Sahib. 3. In the application, the prosecutrix has alleged that petitioner had employed her at Ronhat in his X-ray plant/ medicines shop on the pretext that she would get a diploma of trained nurse and Rs.1500/- per month as wages. The petitioner shifted his shop from Ronhat to Miserwala by-pass, Tehsil Paonta Sahib and took a house on rent and put X-ray plant there. He also employed two other girls Vandana and Anu. The petitioner took the prosecutrix to his house at Jagadhari where she served there for about two-three months. 4. The petitioner at Ronhat started visiting the house of the prosecutrix, took into confidence the family members of the complainant, he brought one Raj driver with him and requested the father of the prosecutrix for the marriage of elder sister Sushila of the prosecutrix with said Raj. Thereafter marriage between Sushila and Raj was performed. 5. The prosecutrix at Miserwala was allured by the petitioner that he would increase her monthly wages and she would get diploma of trained nurse as early as possible. She was raped by the petitioner on one night forcibly after giving her threat of life as he was having a pistol with him. Thereafter she was raped by the petitioner many times and he threatened the prosecutrix with dire consequences if she would reveal her rape to anyone. 6. On 19.1.2009 night the petitioner entered in the room of Anu, who raised hue and cry and people from the vicinity came to the spot, the matter was reported to the police, all of them were arrested. …3… 7. Sushila elder sister of the prosecutrix was harassed by her mother-in-law and she was shunted out from the house, she started living with her father. Raj husband of Sushila told that he had given Rs.50,000/- to the petitioner for getting him married with Sushila. Thus the petitioner has not only raped the prosecutrix but has also sold prosecutrix’s elder sister to Raj. The petitioner used to take the prosecutrix to Dehradun and also to other metropolitan cities for sexual exploitation and introduced her with his high profile clients and thereby sexually exploited her. 8. On 8.6.2009 when prosecutrix came to Paonta Sahib with her father to attend the court of Sub Divisional Magistrate, the petitioner met her and again threatened her to do away with her life in case she would report the matter to anyone. The prosecutrix with great strength and power could tell to her father about the entire incident who advised her to take legal recourse against the petitioner. The prosecutrix had ultimately filed the complaint before the Judicial Magistrate. 9. The learned counsel for the petitioner has submitted that case against the petitioner is false, the story put forward his highly improbable and unnatural. The age projected by the prosecution of the prosecutrix is doubtful, she is not less than 19-20 years. The extract of the Parivar register, which has been taken by the police to show the age of the prosecutrix is a forged and fabricated document. The father of the prosecutrix has given the date of birth of his one son Kuldip as 15.4.1990 and that of his daughter Sushila as 8.7.1990. There is no explanation why the date of birth of …4… the prosecutrix was not collected on the basis of school certificates. The petitioner is a married man having two children and wife in his family. The petitioner is ready to join the investigation, no recovery is to be made from the petitioner. 10. The learned Additional Advocate General has opposed the bail application on the grounds that the prosecutrix has leveled serious allegations against the petitioner. The allegation of sexual exploitation of the prosecutrix by the petitioner has been made by prosecutrix. The prosecutrix has specifically stated that she was raped by the petitioner several times. As per Panchayat record, the date of birth of the prosecutrix is 5.6.1994, the date of birth of Kuldip is 15.4.1990 and that of Sushila is 8.7.1992. The petitioner, prosecutrix and two more girls were arrested in FIR No. 41/2009 registered at Police Station, Paonta Sahib, under Section 109 IPC etc. The doctor in the MLC has given the age of the prosecutrix 15 years on the date of her examination on 10.6.2009. The petitioner has earlier filed bail application, under Section 438 Cr.P.C., which was rejected by Sessions Judge, Nahan on 3.7.2009. The learned Additional Advocate General has submitted that in view of gravity of offence, the petitioner is not entitled to bail under Section 438 Cr.P.C. 11. I have considered the rival contentions of the learned counsel for the parties. As per Panchayt record, the date of birth of the prosecutrix is 5.6.1994. The doctor in the MLC has also given the age of the prosecutrix 15 years as on 10.6.2009. The doctor has opined that sexual intercourse has taken place. The doctor has further opined that since five- six months have already taken place, …5… therefore, exact time cannot be pointed. He has, however, opined that prosecutrix is used to sexual intercourse. The prosecutrix has specifically named the petitioner for raping her on various occasions and taking her to various places for sexual exploitation. Prima facie, the prosecutrix was less than 15 years of age on the date of alleged offence of rape. The petitioner had filed bail application, under Section 438 Cr.P.C., which has been rejected by the Sessions Judge, Nahan on 3.7.2009. In the facts and circumstances of the case, the petitioner has failed to make out any case for bail, under Section 438 Cr.P.C. Accordingly, the petition is dismissed. 12. The observations made hereinabove shall not be construed as expression of opinion on the merits of the case. July 15, 2009. ( Kuldip Singh ) (Hem) Judge.