SAT PAL Vs. STATE OF H P

JUDGEMENT

(1.) This petition has been filed by the Petitioner under Sections 439 and 482 of the Code of Criminal Procedure for grant of bail in FIR No. 153 of 2010, dated 1.6.2010 for offences under Sections 363, 366A, 109 and 376 of the Indian Penal Code.

(2.) Prior to this petition, the Petitioner had approached the learned Sessions Judge, Kangra at Dharamshala but that petition was withdrawn on 30.9.2010. Subsequently another petition was filed on 9.11.2010. While dismissing the application, by its order dated 4th December, 2010 the learned Additional Sessions Judge, Kangra at Dharamshala noted the fact as presented before him that on 1.6.2010 complainant Garib Dass reported the case to the police at P.S. Indora that the prosecutrix who was aged 15 years 6 months had been missing from 30.5.2010 had disappeared somewhere around 10.45 P.M. in the night. He also found that Sat Pal was also missing from his house since 30.5.2010 and he had abducted the prosecutrix. On these allegations the FIR was registered against the Petitioner. During investigation, the police obtained the date of birth certificate of the prosecutrix which was found to be 4.12.1994. On 25.7.2010 the prosecutrix was recovered from the custody of the Petitioner at Dassuya, Distirct Hoshiarpur. It was alleged that prosecutrix refused to get herself medically examined on 25.7.2010 although the Petitioner was subjected to medical examination. The custody of the prosecutrix was handed over to her parents.

(3.) The prosecution case is that the prosecutrix had been taken away from the lawful guardianship of the parents with the intention to force her to marry the Petitioner. One Darshna who was co-accused with the Petitioner had encouraged the prosecutrix and forced her to live with the Petitioner. In Cr.MP(M) No. 825 of 2010 Darshna Devi was admitted to bail vide order of this Court dated 6th August, 2010 on the statement having been made by the prosecution that custodial interrogation of this co-accused was not required. Later on the prosecutrix was medically examined on 2.9.2010 and it is stated by the prosecution that offence of rape is established. The case put forth by the Petitioner before the trial Court was that he was falsely implicated and that prosecutrix being major, was a consenting party. One another allegation was made that she had married the Petitioner and therefore, no offence was made out. In other words, consensual relations do not and cannot form the subject matter of rape as the Petitioner has married. The learned Court on the material collected before it observed that there is nothing on record to show that the Petitioner had actually married the prosecutrix. According to birth certificate, she was below 16 years of age. In these circumstances, the application was dismissed.