Ankush Kumar vs State of Himachal Pradesh

Kuldip Singh, Judge

This is an application u/s 439 Cr. P.C. for releasing the petitioner on bail in FIR No. 321/2011 dated 30.12.2011, registered at Police Station, Palampur, District Kangra, under Sections 363, 366A, 376, 506 IPC. It has been stated in the application that petitioner has been falsely involved in the case and he is in custody. The petitioner had filed bail application which has been dismissed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, on 06.06.2012. The petitioner is innocent. The investigation in the case is complete. The petitioner is permanent resident of Tehsil Palampur. There is no apprehension of petitioner absconding or jumping over the bail, if granted by the Court. The further detention of the petitioner in jail is not going to serve any purpose of the prosecution. The petitioner is ready to furnish bail bonds. The submission has been made for releasing the petitioner on bail.

The status report has been filed. It has been stated that on 30.12.2011 rapat No. 18 roznamcha dated 30.12.2011 was received from Police Post, Panchrukhi, for registration of case. The complainant at about 7.45 p.m. on 30.12.2011 came to the Police Post and told that he is working as ''Beldar'' in the University at Palampur. He has two daughters and one son. The elder daughter is married, younger daughter age 17 years is studying in 10+1 in Government Senior Secondary School, Rajpur. On 29.12.2011, his younger daughter was watching T.V. He suspected that his daughter was talking with someone on telephone. However, complainant, his wife slept in one room and younger daughter slept in another room.

The complainant got up after some time, he found that his daughter was not in the room and door was open. The family searched the prosecutrix, but she was not traced. On 30.12.2011 a boy son of Puran Chand came to his house at 5 o''clock and disclosed that prosecutrix was sleeping in the verandah of his house. The complainant brought the prosecutrix from the house of Puran Chand. The complainant enquired from the prosecutrix where she had gone last night, but she did not reply.

At about 11.00 a.m., the complainant again found his daughter missing from the house. The complainant and his son Sandeep Kumar searched prosecutrix. Nordan Lama, tenant of the complainant, in the evening told that he had received one telephone on his mobile at 1.00 p.m. and the caller disclosed his name Abhishek and identified himself as a student of Palampur College. The caller also disclosed that he was god-brother of prosecutrix. The complainant contacted Abhishek on the phone number given by him to Nordan Lama. He disclosed that one Manu, resident of Ghuggar had brought prosecutrix from her house, Amit, who was working in some Project at Bandla was also with him. The complainant told Abhishek to bring the daughter of the complainant in her house. Abhishek told that prosecutrix would be brought back next morning to her house safely. The complainant told that he was not aware of Abhishek, who disclosed himself to be god-brother of prosecutrix. The complainant suspected that his daughter has been kidnapped by aforesaid three on the allurement of marriage. On this, the case was registered.

The statement of prosecutrix was recorded u/s 161 Cr.P.C. She stated that Ankush Kumar alias Veeru on 30.12.2011 under threats and promise took her to Chamunda and committed forcible sexual intercourse with her at ''Shivani Home Stay''. The prosecutrix was got medically examined on 01.01.2012. The radiological age of prosecutrix was opined 13/14 years. The recoveries were made from ''Shivani Home Stay''. The petitioner was arrested on 01.01.2012. The mobile sim of petitioner was recovered on the basis of his statement made u/s 27 of the Evidence Act. The exhibits were sent for chemical analysis to R.F.S.L., Dharamshala. The Medical Officer after seeing the chemical analysis opined that ''she has been exposed to the act''. The date of birth of the prosecutrix as per school certificate is 23.11.1994.

It has come in the investigation that petitioner disclosed his name Abhishek when he talked to the father of the prosecutrix on telephone. The petitioner in order to mislead gave the names of Manu and Amit. The challan has been submitted in the court on 26.03.2012. The bail application of the petitioner has been dismissed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, on 06.06.2012.

Heard and perused the record. The learned counsel for the petitioner has submitted that petitioner is in custody since 01.01.2012. The prosecutrix was more than 16 years at the time of alleged commission of offence. She went voluntarily with the petitioner. Therefore, it can be safely inferred that everything happened with the consent of the prosecutrix. The further detention of the petitioner is not necessary. The learned Additional Advocate General has submitted that, no doubt, on the date of occurrence, the prosecutrix was more than 16 years as per her school record, but according to radiological age, she was about 13/14 years. In any case, sexual intercourse was committed with prosecutrix under threat, therefore, age of the prosecutrix is not material. The learned Additional Advocate General has submitted that charge has been framed and now the case has been fixed for prosecution evidence on 20 to 24.09.2012 in the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala. The prosecution is to examine 19 witnesses. The learned Additional Advocate General has submitted for rejection of the bail application.

The date of birth of the prosecutrix as per school record is 23.11.1994. The alleged occurrence took place on 30.12.2011. As per prosecution, the prosecutrix has alleged that petitioner has committed forcible sexual intercourse with her at Chamunda in ''Shivani Home Stay''. The sexual intercourse was with or without consent of prosecutrix will be determined by the trial Court. The prosecutrix alleged that petitioner committed forcible sexual intercourse with her. In these circumstances, age of the prosecutrix is not relevant. The charge has already been framed. The case is fixed for prosecution evidence. In these circumstances, the petitioner has failed to make out a case for grant of bail u/s 439 Cr.P.C. The bail application is dismissed. The observations made in the judgment are for disposal of the bail application and shall not be construed as expression of opinion on the merits of the case.