IMPORTANT POINT
Kidnapping and rape of girl child – Children are deemed to be incapable of consent and consent is no defence to offences punishable under POCSO Act.

JUDGMENT

Rakesh Kainthla, J.—The petitioner has filed the present petition for seeking regular bail in F.I.R. No.57/2024, dated 20.05.2024, registered at Police Station, Kihar, District Chamba, for the commission of offences punishable under Sections 363 and 376 of the Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act.

2. It has been asserted that a false case was registered against the petitioner by the police. The allegations are baseless and incorrect. There is no evidence to connect the petitioner with the commission of crime. The petitioner shall abide by the terms and conditions which the Court may impose. Hence, the petition.

3. The petition is opposed by a filing status report asserting that the informant, the father of the victim, made a complaint that the victim was born on 04.08.2007. She left her home on 19.5.2024 without informing any person. The informant suspected that Rishi (petitioner) had kidnapped the victim. The police registered the F.I.R. and recovered the victim. The victim revealed that she was talking to the petitioner. She called the petitioner and told him that her parents were marrying her. She asked the petitioner to marry her. She left her home. No illegal act was done by the petitioner against her. The police seized various articles, and the doctors obtained various samples, which were sent to the State Forensic Science Laboratory (SFSL), Junga. As per the report of SFSL, Junga, the DNA profile obtained from the victim’s salwaar and vaginal swab matched the DNA profile obtained from the petitioner’s blood. The victim made a supplementary statement that she was frightened and could not disclose the commission of rape earlier. The police arrested the petitioner and filed the chargesheet before the court. One witness out of 31 cited by the prosecution has been examined. The petitioner would intimidate the witnesses in case of his release on bail. Hence, it was prayed that the bail petition be dismissed.

4. I have heard Mr. Kulbhushan Khajuria, learned counsel for the petitioner and Mr. Lokender Kutlheria, learned Additional Advocate General for the respondent-State.

5. Mr. Kulbhushan Khajuria, learned counsel for the petitioner, submitted that the victim made a statement under Section 164 of Cr.P.C. that she had left her matrimonial home voluntarily. Therefore, there was no kidnapping. The victim carried her Aadhar card in which her date of birth was mentioned as 1.1.2005. Therefore, there were reasonable grounds to believe that the victim was not a minor on the date of the incident. The police have filed a charge-sheet, and no fruitful purpose would be served by detaining the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

6. Mr. Lokinder Kutlheria, learned Additional Advocate General for the respondent-State, submitted that the petitioner had raped a minor, which is a heinous offence. This fact was corroborated by the report of forensic analysis in which the DNA of the petitioner was found in the salwaar and vaginal swab of the victim. The prosecution’s evidence is yet to be recorded, and releasing the petitioner on bail would adversely affect the fair trial. Therefore, he prayed that the present petition be dismissed.

7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed at page 783: -

“Relevant parameters for granting bail

26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the