RAJEEV KUMAR Vs. STATE OF H.P.

JUDGEMENT

(1.) This petition under Section 439 of the Code of Criminal Procedure has been filed by the petitioner -accused (hereinafter referred to as the accused) for grant of bail in case FIR No. 34/2004 dated 19.2.2004, under Section 376 iPC and Section 3 of 1 the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station, Oharamshala.

(2.) Case of the prosecution in brief is that the prosecutrix is a resident of Kuppa in Tehsil Pangi and belongs to a Scheduled Tribe. She was born on September 10, 1972. She came to Dharamshala in the year 1996 to acquire higher education where she was residing in a Women Hostel. The accused, who is presently posted as SDO, H.P.P.W.D. at Gaggal, and the prosecutrix were introduced to each other by Kumari Annu in the month of December, 1997 at Dhauladhar Hotel, Dharamshala. Thereafter, the accused had been meeting the prosecutrix and also got acquainted with other girls of the Hostel. He used to take them on joy -trips. In due course he proposed and promised to marry the prosecutrix. One day, he took her to Jawalaji Temple and put sindoor on the parting of hair of her head and told her to keep it a secret till he made his mother to agree for their marriage. The prosecutrix completed her graduation in 1999 and went for DP.Ed. Course to Maharashtra. During the period when the prosecutrix visited her native place, the accused used to remain in her company and during this period he established physical relations with her while staying at different places like Jawalji, Jogindernagar, Shimla, Kullu, Mcleod Ganj, Palampur and Hamirpur, where he had been staying with the prosecutrix claiming her to be his wife. Once he too the prosecutrix to Mussourie where they stayed in a hotel for 7 days. In the year 2001 prosecutrix went to her native place and joined service at Pangi. The accused had been contacting the prosecutrix at Pangi on telephone and had been inviting her to Kangra. He had also been writing letters to her. The accused thus exploited the prosecutrix physically and mentally for seven years, during which he pregnated her twice and got her aborted twice. When the prosecutrix insisted for marriage, he refused to marry her. The investigation in the case is complete and the charge -sheet has already been submitted against the accused and the case is now listed for framing of charge. The bail has been prayed for on the grounds that on receipt of the documents under Section 207 Cr.P.C, it has been found that there are various infirmities and discrepancies in the prosecution case and new facts have been noticed; that there is a delay of more than five years in lodging the FIR and charge of rape has been levelled against the accused despite the fact that the prosecutrix after terminating her pregnancy continued to have sexual relations with the accused even according to the version of the prosecution, that investigation in the case is complete, that the accused has no past criminal history and that on the basis of the material relied upon by the Investigating Agency, the accused in all probabilities is likely to be acquitted of the charges.

(3.) I have heard the learned Counsel for the accused and the learned Advocate General for the respondent -State and have also perused the police report and the investigation records.