The main legal point established is that the conduct and understanding of the victim-prosecutrix, the presumption of innocence, and the object of bail to secure the accused's appearance at trial were crucial in determining the grant of bail.

JUDGMENT

Sandeep Sharma, J. - By way of instant petition filed under S.439 CrPC, bail petitioner, Som Dutt, who is behind the bars since 18.9.2019, has prayed for grant of regular bail in FIR No. 90, dated 1.5.2018 under Ss. 363, 366 and 376(2) read with S.120B IPC and Ss. 6 and 17 of Protection of Children from Sexual Offences Act, registered at Police Station, Sarkaghat, District Mandi, Himachal Pradesh.

2. Sequel to order dated 16.11.2019, ASI Vinod Kumar has come present with the record. Mr. Kunal Thakur, learned Deputy Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned.

3. Close scrutiny of status report/record reveals that on 1.5.2018, complainant namely Ramesh Kumar (father victimprosecutrix) lodged a complaint at Police Station Sarkaghat, alleging therein that on 30.4.2018, at about 6 pm, his minor daughter (victim-prosecutrix)(name withheld) eloped with the bail petitioner, who is son of Bali Ram. Complainant also alleged that the bail petitioner and victim-prosecutrix also took some cash and valuable from the house of one Chint Ram, as such, appropriate action be taken against them. On the basis of aforesaid statement made by the complainant, FIR as detailed herein above came to be registered against the bail petitioner and co-accused Bali Ram, who already stands enlarged on bail by this Court vide judgment dated 24.10.2019 passed in CrMP(M) No. 1878 of 2019. During the course of investigation, complainant submitted an affidavit with the Police stating therein that cash and valuables reported to have been taken by the bail petitioner and victim-prosecutrix have been found in the house. During investigation, Police tracked the location of the cell phone and that of bail petitioner and victim-prosecutrix at Lahul and Spiti. On 7.9.2019, Police brought victim-prosecutrix and bail petitioner to Sarkaghat for identification. Victim-prosecutrix in her statement given to the Police as well as before Magistrate under Ss. 161 and 164 CrPC, respectively, stated that she of her own volition and without there being any external pressure from accused, had gone with the bail petitioner and she has already solemnised marriage with him. In the aforesaid statement made by victimprosecutrix, she stated that they have been living as husband and wife and she is carrying pregnancy of four months. During investigation it also emerged that the bail petitioner and victimprosecutrix had prior proximity and they wanted to marry each other but due to minority of the victim-prosecutrix, such proposal could not materialize and as such, they eloped and lived as husband and wife in Lahul and Spiti.

4. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting the factum with regard to filing of Challan, contended that keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Mr. Thakur, learned Deputy Advocate General contended that though material on record reveals that the victim-prosecutrix, of her own volition and without there being any external pressure joined the company of the bail petitioner but consent, if any, of her being minor is of no consequence and as such, prayer made on behalf of the bail petitioner for bail may be rejected.

5. Having heard learned counsel for the parties and perused the material available on record, especially the statement of victim-prosecutrix recoded under S.164, this Court finds that the victim-prosecutrix, who at the relevant time was 17 years old, joined the company of the bail petitioner of her own volition, without there being any external pressure. Record further reveals that both the victim-prosecutrix and the bail petitioner were actually residing in the house of complainant at the time of alleged incid