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2004 DIGILAW 47 (HP)

MOHAN SINGH v. STATE OF H. P.

2004-03-17

M.R.VERMA

body2004
JUDGMENT M.R.Verma, J. (Oral) - The accused-petitioner (hereafter referred to as the accused) has preferred the present application under Section 439 of the Code of Criminal Procedure for grant of bail to him in case FIR No.29/2004 dated 26.1.2004 under Sections 376,506 of the Indian Penal Code and Section 3(XII) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,:1989, registered at Police Station Boileauganj, Shimla. 2. Case of the prosecution against the accused in brief is that he is a Thakur by caste whereas the prosecutrix belongs to Koli, caste. About six months before the lodging of the FIR on 26.1.2004 when the prosecutrix was grazing her cattle in the jungle, the accused forcibly subjected the prosecutrix to sexual intercourse as he was possessed of a gun at that time. Even thereafter he committed rape on the prosecutrix twice or thrice and the prosecutrix could not disclose it because of fear as a result of the threats given by the accused. When the prosecutrix conceived and pregnancy became apparent, the prosecutrix disclosed the whole occurrence to her mother and the FIR was lodged and the investigation followed. The investigation in the case is more or less complete except that reports from the experts are being awaited. The accused is presently in judicial custody. The bail has been prayed for on the grounds of delay in filing the FIR, enmity and rivalry because of Panchayat elections and that the accused is innocent. 3. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the investigation records. 4. It is admitted case of the prosecution that the prosecutrix was allegedly raped by the accused for the first time about six months before the lodging of the FIR which was lodged on 26.1.2004. Thus, the occurrence of first rape dates back to last week of July, 2003. Admittedly date of birth of the prosecutrix is 3.7.1987, therefore, there is no positive evidence to prima facie show that at the time of the occurrence the prosecutrix was below 16 years of age. 5. As per the prosecution, prosecutrix gave birth to a child on 28.1.2004 and it is not stated to be a case of premature delivery. Admittedly date of birth of the prosecutrix is 3.7.1987, therefore, there is no positive evidence to prima facie show that at the time of the occurrence the prosecutrix was below 16 years of age. 5. As per the prosecution, prosecutrix gave birth to a child on 28.1.2004 and it is not stated to be a case of premature delivery. Therefore, what can be said at this stage is that this child must have been conceived about 9 months before the birth i.e. in the month of April, 2003. It is not the case of the prosecutrix or the prosecution that the accused had raped the prosecutrix for the first time sometimes in March/April, 2003. If the accused raped the prosecutrix for the first time sometimes in July, 2003 that cannot be the cause of conception and giving birth to the child by the prosecutrix. Thus the very version of the prosecution is rendered highly improbable. 6. In view of the above discussion and the facts and circumstances of the case, this is a case for grant of bail to the accused. 7. As a result, this application is allowed and the accused is ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 15,000/- with one surety in the like amount to the satisfaction of any Judicial Magistrate at Shimla. The bail, however, is subject to the conditions that the accused shall not in any manner tamper with the prosecution evidence, shall not indulge in the commission of the offences and shall not deliberately or intentionally act in a manner which may tend to delay the investigation/trial of the case. Copy dasti.