Point of Law : POCSO Act – Kidnapping and Rape – Grant Bail – Accused and victim have Prior acquaintance and love.

ORDER

Bail petitioner namely Dharampal, who is behind bars since 13.12.2021, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in case FIR No. 115 of 2021 dated 5.11.2021, under Sections 363 & 376 of IPC and Section 4 of POCSO Act, registered at PS Hatli, District Mandi, H.P. Respondent State has filed the status report in terms of order dated 4.2.2022. ASI Brij Lal, I/o P.S. Hatli, District Mandi, H.P has also come present with records. Records perused and returned.

2. Perusal of status report/record reveals that on 5.11.2021, complainant Rakesh Kumar, who happens to be father of the victimprosecutrix (name withheld), lodged aforesaid FIR, alleging therein that his minor daughter aged 16 ½ years i.e. victim-prosecutrix has gone missing and as such, efforts be made to locate her. On the basis of aforesaid information, police started investigation and found that bail petitioner had been calling on the mobile number of mother of the victim-prosecutrix. During investigation, police found that bail petitioner had given a telephonic call to a taxi driver namely Satish Kumar alias Kalu Ram, who thereafter took bail petitioner and victim-prosecutrix to Baddi in his vehicle, from where present bail petitioner took the victim-prosecutrix to Rohtak in some private vehicle. After ascertaining the location, police recovered the victim-prosecutrix from Rohtak and got her medically examined at CHC Baldwara. Medical Officer opined that there is nothing to suggest that sexual intercourse has not been conducted with the patient, however final opinion shall be given after the receipt of the report of RFSL. On 9.12.2021, police arrested the bail petitioner and since then, he is behind the bars.

3. Since Challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.

4. Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting factum with regard to filing of the Challan in the competent court of law contends that though nothing remains to be recovered from the bail petitioner, but keeping in the gravity of offence alleged to have been committed by the bail petitioner, it may not be in the interest of justice to enlarge him on bail. While making this Court to peruse the status report/record, learned Additional Advocate General, submits that though there is overwhelming evidence suggestive of the fact that the bail petitioner taking undue advantage of the innocence and minority of the victim-prosecutrix not only made her to elope with him, but also sexually assaulted her against her wishes, but even otherwise consent, if any, of victim-prosecutrix being minor is immaterial and as such, bail petition having been filed by the bail petitioner deserves outright rejection.

5. This Court having heard learned counsel for the parties and perused material available on record, especially, statement made by the victim-prosecutrix under Section 164 Cr.PC, finds that victim-prosecutrix and present bail petitioner had prior acquaintance and they had been meeting and talking to each other for the last three years prior to the alleged incident. Victim-prosecutrix in her statement recorded under Section 164 Cr.PC before the Magistrate has categorically stated that she loves the bail petitioner and wants to solemnize marriage with him and she was forcibly taken by her parents for medical examination. Most importantly, victim-prosecutrix in her aforesaid statement has stated that she had asked the bail petitioner to take her to Rohtak from Barnal and nothing happened against her wishes and she shall have no objection in case bail petitioner is acquitted of charges leveled against him. No doubt, consent, if any, of the victim-prosecutrix is immaterial in view of her age, but having taken note of the conduct of the victim-prosecutrix, which is quite apparent f