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1999 DIGILAW 216 (HP)

BHAGAT RAM v. STATE OF H. P.

1999-10-13

M.R.VERMA

body1999
JUDGMENT M.R. Verma, J.: This petition under Section 438 read with Section 482 of the Criminal Procedure Code for grant of anticipatory bail has been preferred by the bail petitioner on the ground that he is innocent whereas a case under Sections 363/366/376 of the Indian Penal Code has been registered against him on the allegations that he had removed one Kumari Sarita from the custody of her lawful guardian and committed rape on her. His application for grant of anticipatory bail is stated to have been dismissed by the learned Sessions Judge. 2. Case of the prosecution against the bail-petitioner, in brief, is that Kumari Sarita is about 14 years of age. She was removed from the house of her parents by the bail-petitioner and his co-accused, namely, Ram Bhagat, Moti Ram, Kanthi Lal on the pretext that her mother was seriously ill at Kalpa and had called the prosecutrix there. When the prosecutrix was accompanying the bail-petitioner and the aforesaid co-accused on September 26, 1999 to go to Rekong Peo, in fact, she was removed in a van to Rupi and was then taken to village Manjhgaon (Rupi) on the pretext that first she should meet her sister there. The sister of the prosecutrix is stated to be married in village Manjhgaon (Rup) to accused Ram Bhagat. In Rupi the prosecutrix was taken to and kept in a house of the bail-petitioner. In the evening a few villagers collected over there and took liquor etc. The prosecutrix was informed that she had been brought there so that she is married to Bhagat Ram, bail-petitioner. On the night intervening 26th/27th of September, 1999, the prosecutrix was subjected to sexual intercourse by the bail-petitioner. 3. I have heard the learned counsel for the bail-petitioner and the learned Additional Advocate General for the State and have also gone through the investigation record. 4. It is though contended for the bail-petitioner that the prosecutrix had gone to village Rupi to see her sister, however, these facts are not borne from the record which reveals that the prosecutrix was taken to the said village by mis-representing the facts that she was called by her ailing mother to Rakong Peo and then instead of taking to Rekong Peo, she was taken to Manjhgaon (Rupi) on the pretext that first she should meet her sister at Manjhgaon who in fact is residing in that village. Against this background, it cannot be said that the prosecutrix accompanied the bail-petitioner and his accompalices of her own free will to Rupi but she was taken there by fraudulent means. 5. It was further contended by the learned counsel for the bail- petitioner that the medical evidence does not show that the prosecutrix was subjected to sexual intercourse. ^ s 6. The prosecutrix was medically examined on October 2, 1999 whereas according to the prosecutrix, she was subjected to sexual intercourse on the night intervening 26th/27th of September, 1999. What the medical opinion says is that there was no evidence of recent sexual intercourse. It is a question of interpretation and clarification as to what does the doctor mean by recent sexual intercourse. At this stage, prima facie the version of the prosecutrix has to be taken as correct. The bail-petitioner is related to the prosecutrix inasmuch as her sister is married to the brother of the accused. Thus, there is nothing from which it may be inferred that the prosecutrix is making false allegations against the brother-in-law of her sister. 7. It was also contended that the age of the prosecutrix is 18 years, therefore, in the facts and circumstances of the case, her accompanying the bail-petitioner and having sexual intercourse with him of her free will cannot be ruled out, or in any case, the age factor should weigh in favour of grant of bail. 8. As already stated here-in-above, irrespective of the age, the prosecutrix has not accompanied the accused of her own free will. There is nothing on record, as already stated here-in-above, to draw an inference that the prosecutrix was a consenting party to the act of sexual intercourse which was allegedly committed upon her in a house owned by the bail-petitioner far away from her i parental houses and where she was taken by use of fraudulent means. 9. The remedy of anticipatory bail is an extra-ordinary remedy provided in the law and has to be resorted to only in axceptional cases wherein special grounds are made out such as attempts to involve the applicant in a false case with a view to disgrace or malign him. No such circumstances are involved in, the present case. 9. The remedy of anticipatory bail is an extra-ordinary remedy provided in the law and has to be resorted to only in axceptional cases wherein special grounds are made out such as attempts to involve the applicant in a false case with a view to disgrace or malign him. No such circumstances are involved in, the present case. The prosecutrix had been made to leave the house of her parents on mis-representation of facts and false pretexes and then taken to the house of the bail- petitioner. The circumstances in which the offence has been committed, do not mitigage the seriousness of the offence rather magnifies it. -The bail-petitioner is prima facie shown to have indulged in a serious and heinous offence relying on false-hood. The investigation is still on. In these circumstances, I do not find the bail-petitioner entitled to be released on anticipatory bail. 10. As a result, this application merits dismissal and is accordingly dismissed.