Point of Law: Consent to accompany, wander or to have dinner and to stay in a room does not, in all eventuality, amount that there is consent of a girl or woman to have sexual intercourse.

ORDER :

Petitioner has approached this Court, invoking provisions of Section 439 of Cr.P.C., seeking regular bail in case FIR No. 54 of 2020, dated 14.10.2020, registered in Police Station Nankhari, District Shimla, H.P., under Sections 363, 376 and 506 of the Indian Penal Code (in short ‘IPC’) and Sections 6 and 12 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’).

2. Status report stands filed and record was also made available.

3. Prosecution case, in brief, is that on 14.10.2020 complainant, alongwith her husband and minor daughter (victim), had submitted a complaint in Police Station Nankhari, stating therein that in their family there are two children and their elder daughter (victim) whose date of birth is 18.04.2006 and who is studying in 10th Class in Government High School. Whereas, their 11 years younger child (son) is studying in 8th Class and since 9-10 years, the family is residing in a secondary house situated in their Orchard. On 13.10.2020, her husband and she were not at home during day time and in the evening, when she reached home, her son informed her that their daughter who had gone to Kholighat to give lunch to her father, did not return thereafter. Whereupon, complainant informed her husband about it on his mobile. Their daughter was not having phone. Her husband went in search of their daughter up to Kholighat, but he did not find her. One Sarjeevna told her that her daughter was seen at Kholighat alongwith Sushma. Thereafter, family members and relatives searched victim at Dophagarh, Kholighat, Narkanda etc., but she was not found anywhere. On 14.10.2020, when they were searching their daughter at Nagadhar, she received a call of Dropdi informing that victim had reached home. Thereafter, their daughter was brought to Nagadhar and inquired about her whereabouts during previous night. Whereupon, victim disclosed that petitioner had taken her from Kholighat to Tikkar on foot and thereafter in a small vehicle from Tikkar to Narkanda and during night he took her to some hotel at Narkanda and violated her person during night for four times and in the morning he dropped her at Kholighat, wherefrom she went home.

4. On the basis of aforesaid statement, FIR was registered. Statement of victim was recorded under Section 161 Cr.P.C. and she was subjected to medical examination and as per preliminary opinion of the Medical Officer, possibility of forceful sexual assault could not be ruled out.

5. On finding complicity of petitioner in commission of offence, he was arrested on 14.10.2020 at 9.15 p.m. On interrogation during his custody, place of occurrence was identified by the petitioner as well as minor victim. On disclosure under Section 27 of the Indian Evidence Act, condoms used by the petitioner at the time committing offence were taken in possession. Clothes of victim, condoms, vaginal swabs of victim, urethral swabs, and penile swab of petitioner alongwith his clothes and hair lifted from the spot were sent for chemical analysis to State Forensic Science Laboratory (SFSL) Junga. Human semen was detected on the underwear of petitioner, condoms, blanket of the Hotel and on DNA analysis of condoms, an autosmal STR DNA profile pertaining to a male individual was obtained from the inner surface of the condom, which matched completely with DNA profile obtained from the blood sample on FTA card of the petitioner. An autosmal STR DNA profile pertaining to a female individual was obtained from the outer surface of condoms, which completely matched with DNA profile obtained from blood sample of victim. On the basis of aforesaid chemical analysis final opinion was given by the Medical Officer stating that possibility of forceful sexual assault could not be ruled out.

6. After arrest on 14.10.2020, petitioner remained in police custody for three days and thereafter, he was sent in Judicial custody and since then he is behind the bars.

7. As per record, age of victim at the time