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2021 DIGILAW 303 (HP)

Suresh Kumar v. State Of H. P.

2021-05-06

ANOOP CHITKARA

body2021
JUDGMENT Anoop Chitkara, J. - The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail on the grounds that he is in jail w.e.f. 8.11.2020. 2. Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 17.12.2020 learned Special Judge, Shimla HP, dismissed the petition because of the gravity of the offence. After that the petitioner filed a petition before this Court, which was registered as Cr.MP(M) No.104 of 2021. However, on 4.2.2021, the same was dismissed as withdrawn with liberty to file fresh one. 3. In Para 10 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused. 4. Briefly, the allegations against the petitioner are that on 1.11.2020, on some information of a whistle blower, the police officials inspected the house of one Brij Lal Puri. On search, they noticed a small girl, who was employed as a domestic help who belonged to Madhya Pradesh. She further informed the police that before lockdown, she was brought to Shimla by the son of her uncle to do household work in the house of Brij Lal Puri. Said Brij Lal Puri and his wife Aarti not only kept the victim in their house without the consent of her parents but also did not inform the police about it. The victim cannot speak or understand Hindi. On this, the Police registered the FIR mentioned above. 5. Subsequently, the victim was taken to IGMC for ossification test, where the doctors opined her age to be between 12 to 14 years. The police also took into possession CCTV footage. The police was experiencing communication difficulty because the victim belongs to remote area of Madhya Pradesh. After recording the statement of the victim under Section 161, Cr.PC, she was sent to Child Care Institute, Tuti Kandi. Subsequently, her statement under Section 164, Cr.PC was recorded on 5.11.2020. After that, father of the victim and one relative visited Shimla and joined investigation. On 7.11.2020, the father of the victim told the investigator that while interacting with her, she disclosed to him that she was sexually exploited by Suresh Kumar (bail petitioner herein), who is employee of Brij Lal Puri. After that, father of the victim and one relative visited Shimla and joined investigation. On 7.11.2020, the father of the victim told the investigator that while interacting with her, she disclosed to him that she was sexually exploited by Suresh Kumar (bail petitioner herein), who is employee of Brij Lal Puri. Upon this, she was sent to IGMC for medical examination and MLC was procured. Investigation further revealed the age of the victim as 14 years. The genetic material obtained from the victim tested negative in the absence of human semen on all the exhibits, however, the doctor opined that the possibility of sexual intercourse cannot be ruled out. 6. Status report revealed that police has launched prosecution on 7.1.2021 by filing a complaint under Section 173(8), Cr.PC. Impliedly, report under Section 173(2), Cr.PC was also prepared. 7. Mr. Satyen Vaidya, learned Senior Advocate, assisted by Mr. Varun Chandel, learned counsel for the petitioner argued that in the first statement recorded on 1.11.2020, the victim did not mention about any rape. Learned counsel argued that it was on 7.11.2020, when the victim mentioned about the rape in her statement recorded under Section 161 Cr.PC. Further, learned counsel has drawn attention to the medical report which shows that hymen of the victim was intact and learned counsel argued that the victim in her statement under Section 161 Cr.PC, in answer to question No.15, had stated that the accused had raped her on three occasions. Had that been so, her hymen would have definitely been ruptured, as there was none to stop the accused from complete penetration. Learned counsel further submits that the presence of hymen shows that the victim improved her story and falsely implicated the accused. 8. On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner. Another argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society. REASONING: 9. At the time of commission of offence, the victim was just 14 years of age. She belonged to under privileged parents who because of poverty were forced to send her to work. Perusal of her MLC shows that she is a thin, lean and poorly nourished child, who was wearing torn and stitched clothes. REASONING: 9. At the time of commission of offence, the victim was just 14 years of age. She belonged to under privileged parents who because of poverty were forced to send her to work. Perusal of her MLC shows that she is a thin, lean and poorly nourished child, who was wearing torn and stitched clothes. In answer to question No.17, she specifically stated that when she felt pain then the accused left her. These allegations itself shows that the accused might not have penetrated his male organ deep enough rupturing hymen. Neither the victim stated about her consent to sexual act nor was it a case of romantic love. 10. At this stage, reference be made to three Judges Bench judgment of Hon'ble Supreme Court, in XYZ vs. State of Gujrat, (2020) CriLJ 660. 11. In Parminder alias Ladka Pola v. State of Delhi, (2014) 2 SCC 592 , Hon'ble Supreme Court holds, PW-15, the doctor who conducted the medical examination of the prosecutrix on 31.01.2001, however, has stated that there was no sign of injury on the prosecutrix and the hymen was found intact. The High Court has considered this evidence and has held that the non-rupture of hymen is not sufficient to dislodge the theory of rape and has relied on the following passage from Modi in Medical Jurisprudence and Toxicology (Twenty First Edition): "Thus, to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains." Section 375, IPC, defines the offence of 'rape' and the Explanation to Section 375, IPC, states that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. This Court has accordingly held in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9 ] that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. This Court has accordingly held in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9 ] that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. In the aforesaid case, this Court has relied on the very same passage from Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition) quoted above. In the present case, even though the hymen of the prosecutrix was not ruptured the High Court has held that there was penetration which has caused bleeding in the private parts of the prosecutrix as would be evident from the fact that the underwear of the prosecutrix was stained by blood. In our considered opinion, the High Court was right in holding the appellant guilty of the offence of rape and there is no merit in the contention of the learned counsel for the appellant that there was only an attempt to rape and not rape by the appellant. 12. Learned counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the accused. 13. Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is dismissed with liberty to file an appropriate bail application by referring to the documents upon which the petitioner is seeking bail. 14. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law. 15. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. 16. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order alongwith the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 17. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 17. In the given facts, the instant petition is dismissed.