KEHAR SINGH Vs. SATISH KUMAR

JUDGEMENT

(1.) The father of the victim girl has invoked the jurisdiction of this court under S. 439(2), Cr. P.C. for cancelling the bail of respon dent No. 1 (Satish Kumar) against whom the allega tion is that he kidnapped the minor girl namely, Kumari Nisha Devi and committed rape on her. The petitioner lodged F. I. R. No, 104 of 1994 dated 16- 7-1994 at 6.30 p.m. at Police Station, Nalagarh under Ss. 363/366/377, I.P.C. The police recovered the girl from the house of one Smt. Neelam Kaur at Jallandhar (Punjab) and thereafter recorded her state ment. She is alleged to have been raped by respon dent No. 1 whereupon the police got her medically examined in civil hospital at Nalagarh. The medical expert seized and sealed her salwar and underwear which were allegedly worn by her at the time of sex indulgence. He also found the hymen to have been ruptured. Apart from the seizure of blood stained multi-coloured pad cotton cloth with full smell, the doctor did not find any external injury over the body. However, pubic hair were found to have been smeared with blood and admitted two fingers but no evidence of fresh injury was found. Vagina swab was also collected and sent to the chemical examiner for analysis. According to the statement of the prosecutrix, she accompanied respondent No. 1 un der the pretext that the latter would marry her. He took her to Nawan Shahar and on the way he indulged in sex with her against her will and without her consent. Thereafter both of them sought advice from one counsel at Nawan Shahar who finding the age of the girl below 18 years, dissuaded them from marring each other. As per the statement of the prosecutrix, thereafter she was taken to the house of Smt. Neelam Kaur at Jallandhar from where she was recovered on 21-7-1994.

(2.) Respondent No. 1 moved an application for seeking his release on bail in anticipation of his arrest under S. 438, Cr. P.C. before the learned Sessions Judge, who after considering the record, allowed the application and directed the accused to be released on his furnishing a bail bond in the sum of Rs. 5,000.00 with two sureties in the like amount vide his order dated 26-7-1994. Aggrieved from the aforesaid order, the father of the prosecutrix has sought the reversal of the impugned order through the instant petition.

(3.) Shri M. S. Chandel, learned counsel for the petitioner, contended that in view of the gravity of the offence and in view of the statement of the prosecutrix, Kumari Nisha, clearly indicating the manner in which the respondent No. 1 indulged in sex with her, the impugned order passed by the learned Sessions Judge smacks of arbitrariness and amounts to gross miscarriage of justice. It is urged that the court below did not advert to the above facts and circumstances while granting bail. Reliance has been placed by the learned counsel on the observa tions made in the case of Gurumutti Digal v. Ashok Kumar Digal, 1992 Cri LJ 1917 and Rattan Kumar Bhardwaj v. State of H. P., 1994 (1) Sim LC 366.