Research › Search › Judgment

Himachal Pradesh High Court · body

2001 DIGILAW 86 (HP)

PARVEZ MOHAMMAD v. STATE OF H. P.

2001-05-11

M.R.VERMA

body2001
JUDGMENT M,R. Verma, J.—This application under Section 438 Cr.P.C. has been presented by the petitioner-accused (hereafter referred to as the accused) for grant of anticipatory bail to him in case FIR No. 74/2001 dated 4.5.2001 under Sections 376, 493, 506 IPC registered at Police Station, Ghumarwin, 2. Case of the prosecution, in brief, is that Salma Bibi who was a student of 8th class in the year 1997 and was aged 14 years was subjected to forcible sexual inter-course by the accused and was threatened not to disclose the occurrence to anyone including her parents. Out of fear the prosecutrix did not disclose the occurrence to any one. Thereafter, for about a fortnight the accused absented from the village and on return started committing rape on the prosecutrix off and on and this process continued till February 2001. In the meanwhile, the prosecutrix got pregnant and her marriage was also fixed. The proposed marriage could not be solemnised against the aforesaid background and on refusal of the prospective bridegroom to marry her. The prosecutrix disclosed all the facts leading to her pregnancy to her parents and a local Panchayat was convened on the complaint of Kamal Deen father of the prosecutrix but the parents of the accused refused to accept the prosecutrix as their daughter-in-law. The matter thereafter was complained against by a complaint dated 30.4.2001 in the court of learned Chief Judicial Magistrate, Bilaspur who forwarded the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure and as a consequence the aforesaid FIR came to be registered and presently the investigation in the matter is going on. 3. The accused has claimed bail on the ground that he is innocent and has been falsely implicated in the case at the instance of vested interests and that the prosecutrix is about 18 years of age and there was no complaint of such allegations against the petitioner till date and that when the would be in-laws of the prosecutrix came to know of the pregnancy they refused to accept the prosecutrix in the marriage and therefore a plan was hatched to name the petitioner as responsible for the pregnancy. 4. I have heard the learned Counsel for the accused and the learned Assistant Advocate General for the respondent-State and have also gone through the investigation records and the police report. 5. 4. I have heard the learned Counsel for the accused and the learned Assistant Advocate General for the respondent-State and have also gone through the investigation records and the police report. 5. The material collected by the police so far discloses that the prosecutrix was subjected to rape by the accused for the first time in the latter half of July, 1997 when she was a student of 8th class and was aged about 14 years as her date of birth is 20.7.1983 as per the records of the concerned Panchayat and Middle Standard examination certificate. It also emerges from the material on record that because of the threat given by the accused and out of fear the prosecutrix did not disclose the occurrence of rape to anyone including her parents. Even thereafter the accused had been subjecting the prosecutrix to rape on the pretext that he would marry her which ultimately led to pregnancy of the prosecutrix. It also emerges that the accused is capable of performing the sexual inter-course but he has refused to give any sample for DNA test at the time of his medical examination from which the prima facie inference can legitimately be drawn against the accused; Thus, in view of the material placed on record it cannot be said at this stage that the accused is innocent and has been falsely implicated in the case. 6. It was contended by the learned Counsel for the accused that though the entire version against the accused person is cooked up but even if for the sake of arguments it is assumed that the prosecutrix conceived some time in October, 2000 she was at that time admittedly more than 16 years of age and was thus capable of giving consent for sexual inter-course. It is, therefore, immaterial whether the consent was obtained on the assurance of marrying her because of her having attained the age of discretion as such assurance resulting in consent of the prosecutrix does not make it a case of rape. To substantiate his submissions the learned Counsel has relied on Araj Sk v. State of West Bengal, 2001 Cri.L.J. 416 and Baldhari Ohdar v. State of Bihar, 2001 Cri. L.J. 883. 7. To substantiate his submissions the learned Counsel has relied on Araj Sk v. State of West Bengal, 2001 Cri.L.J. 416 and Baldhari Ohdar v. State of Bihar, 2001 Cri. L.J. 883. 7. The ratio in both the aforesaid cases is that if at the time of alleged occurrence the prosecutrix is of the age of discretion and thus capable of consenting to the sexual act, the reasons that such consent was obtained on the assurance that the accused would marry the prosecutrix will not render the case to be one of rape as the consenting prosecutrix at the relevant time knew as to what was going to happen and as to what she was consenting for. In both these cases the girls alleged to have been raped by the accused persons were about or more than 18 years of age at the time of alleged rape and it was so proved at the trial. 8. In the case in hand when the prosecutrix was subjected . to rape for the first time she was only 14 years of age and thus incapable of giving consent for sexual inter-course with her. The ratio of the aforesaid cases thus have no application to the facts and circumstances of the present case. 9. The offence alleged to have been committed by the accused is of serious nature for which severe punishment has been provided for in law. In such cases the anticipatory bail cannot be claimed as of right as such bail is meant to save innocent persons from being humiliated and harassed on the basis of false and motivated charges. At this stage there is nothing on the record from which it may be inferred that the charges against the accused are unfounded, baseless and false. 10. The investigation in the case is still going on. The accused has already refused to give sample for DNA test from which an inference against him can no doubt be drawn but in such a situation the opportunity cannot be denied to the police to throughly interrogate the accused to investigate the matter in a proper and just manner. 11. As a result, the present application merits dismissal and is accordingly dismissed. Application dismissed.