SHARIF DEEN Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Petitioner is an accused in FIR No. 319/2012 dated 06.10.2012, registered under Sections 363, 366 and 376 of the Indian Penal Code, registered in Police Station, Indora, District Kangra. The prosecutrix (name withheld), no doubt, was above 16 years of age at the time of occurrence, however, below 18 years. The allegations as has come on record against the accused-petitioner are that by exploiting her tender-age, firstly, he offered sweets to her to eat and then allured her to solemnize marriage with her at the pretext that he will look after and maintain her nicely throughout. The prosecutrix already having lost her parents and allegedly adopted by one Bua Bibi, is an orphan. The accused-petitioner, prima facie, having taken undue advantage of her tender-age and socio-economic condition, enticed her away from the custody of complainant Smt. Bua Bibi at such a stage when she was in a pasture at Chakki-Khad and grazing cattle there. The record further reveals that prosecutrix was taken by the accused-petitioner from Chakki-Khad to Dhangu Peer. The prosecutrix thereafter was taken by the accused- petitioner to Ludhiana and made to stay in some hotel there. No doubt, prosecutrix lived in his company for about 4-5 months and, prima-facie, was major at that time, for the purpose of commission of offence punishable under Section 376 of the Indian Penal Code. She, however, was minor so far as the offences punishable under Sections 363, 366 of the Indian Penal Code are concerned.

(2.) Learned Counsel for the petitioner, no doubt, has vigorously urged that prosecutrix is a consenting party to the sexual intercourse committed with her by the accused-petitioner, however, prima facie, her consent seems to have been obtained on allurement and taking undue advantage of her tender-age and also her socio-economic condition. As otherwise also, as noticed hereinabove, for the commission of offences punishable under Sections 363, 366 of the Indian Penal Code, the prosecutrix is still minor below 18 years of age. Therefore, no case for grant of bail is made out at this stage. Otherwise also, in the event of accused-petitioner is admitted on bail, there is every likelihood of his tampering with the prosecution evidence and terrorizing the prosecution witnesses, none-else but the prosecutrix herself and the complainant Smt. Bua Bibi.

(3.) At this stage, when the case against the accused-petitioner is at the stage of consideration of charge and there being no change in the circumstances after withdrawal of the earlier petition i.e. Cr. MP(M) No. 11818 of 2013 preferred in this Court, it would not be in the interest of justice to admit the accused-petitioner on bail.