RAJESH SAINI Vs. STATE OF HIMACHAL PRADECH

JUDGEMENT

(1.) THIS is an application under section 439, Cr. P. C. for releasing the petitioner on bail in FIR No. 43 dated 4-2-2007, registered at Police Station, Palampur, District Kangra, under Sections 372, 376 (2) (g)etc. IPC and Sections 5 and 6 of the Immoral traffic (Prevention) Act, 1956. The respondent has filed the reply.

(2.) HEARD and perused the record. The prosecution case, in brief, is that prosecutrix aged about 14 years used to go to the shop of Pratap Singh to bring ration for home. One day she came in contact with soma Devi who took her to the house of her daughter Rita Devi at Hara Bagh and convinced her that nothing would happen by doing bad deeds a she had approach up to deputy Superintendent of Police. Next day rita Devi met the prosecutrix at Joginder nagar and asked her to come to Baijnath alone in a bus. The prosecutrix accordingly met Rita Devi who took her to Nagrota to the house of some one where prosecutrix was raped by a man and she became unconscious. Rita Devi gave her Rs. 1000 and dropped her at Baijnath and from there the prosecutrix came to Joginder Nagar. On the second occasion Rita Devi took the prosecutrix at Hotel pops at Gopalpur where another lady Poonam was with her. In that hotel, two persons raped the prosecutrix. Rita Devi again gave Rs. 200 and one mobile phone to the prosecutrix. Rita Devi after some days took prosecutrix to Palampur rest House where again two persons raped the prosecutrix. Rita Devi brought the prosecutrix to Baijnath and gave her Rs. 500. Rita Devi threatened the prosecutrix that in case she would disclose these facts to anyone, then she would be kidnapped from her house. As per the prosecution case, the petitioner raped the prosecutrix at Hotel Pops.

(3.) THE learned counsel for the petitioner has submitted that the petitioner was arrested on 10-4-2007 and since then he is in custody. He has also submitted that three accused, namely, Rita Devi, Soma Devi and poonam have already been granted bail by the Court. The learned counsel for the petitioner has submitted that for purposes of this petition even if the age of the prosecutrix is taken less than 16 years in that case also as per prosecution case the petitioner at the most had consensual sexual intercourse with the prosecutrix as opposed to forcible or deceptive sexual intercourse. He has submitted that for purposes of bail, consensual sexual intercourse with a woman less than 16 years of age cannot be placed at the same pedestal as forcible sexual intercourse against the wish of such woman. The learned counsel for this purpose has relied judgment dated 22-11-2006 passed by learned single Judge of Punjab and Haryana high Court in Criminal Misc. No. 62395-M of 2006 titled as Anil Sethi v. Central Bureau of Investigation. He has also submitted that in her statement under Section 164, cr. P. C. the prosecutrix has nowhere named the petitioner for having committed sexual intercourse with her. He has also submitted that the statement of the prosecutrix has already been recorded during trial and, therefore, continuous detention of the petitioner is not required. In these circumstances, he has prayed that petitioner may be released on bail who is ready to furnish requisite bonds.