IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1959 of 2023 Reserved on: 06.11.2023 Date of Decision: 23.11.2023 Banti .... Petitioner Versus State of H.P ....Respondent Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?1 No For the Petitioner : rMr. R.S. Chandel, Advocate.

For the Respondent : Mr. Prashant Sen, Deputy Advocate General with ASI Yash Pal Singh, Investigating Officer, Police Station Kihar, District Chamba, H.P.

Rakesh Kainthla, Judge The petitioner has filed the present petition for a grant of regular bail. It has been asserted that FIR No. 90 of 2022 dated 12.09.2022 was registered against the petitioner in Police Station Kihar, District Chamba for the commission of offences punishable under Sections 363 & 376 of IPC and Protection of Children from Sexual Offences Act (in short ‘POCSO Act’).

2. As per the story of the prosecution, the petitioner used to visit the house of the victim. He and the victim absconded. The father of the victim filed the FIR. The petitioner

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

was arrested by the police after four or five months. The victim was not recovered from the possession of the petitioner or from his house. The petitioner has no knowledge about the missing of the victim. There is no evidence to connect the petitioner with the commission of offences. The petitioner is in judicial custody. The victim has not stated anything against the petitioner in her statement under Section 164 of Cr.P.C. The petitioner belongs to a respectable family. He is 22 years old and has a bright future. He is the sole breadwinner of the family. He would abide by all the terms and conditions, which may be imposed by the Court. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

3. h A status report was filed by the State asserting that the father of the victim made a complaint to the police that the victim aged 15 years was missing. The petitioner had taken her away on the pretext of the marriage on 12.09.2022. The police searched the victim and recovered her from Kathgarh on 18.02.2023. The victim was found to be pregnant. The date of birth of the victim was found to be 23.1.2008. The petitioner was arrested and as per the medical evidence, there was nothing to suggest that the petitioner is incapable of performing sexual intercourse. The result from RFSL, Dharamshala has been received and as per the report of DNA analysis, the DNA profile of the petitioner matched with the DNA profile obtained from the underwear of the victim. The chargesheet has been filed against the petitioner. Two witnesses have been examined and the matter is now listed for the recording of evidence of witnesses at Sr. No. 3, 4, 5 on 09.11.2023. The petitioner is involved in the commission of the heinous offences; therefore, it was prayed that the petition be dismissed.

4. I have heard Mr R.S. Chandel, learned counsel for the petitioner and Mr Prashant Sen, learned Deputy Advocate General, for the respondent/State.

5. Mr. R.S. Chandel, learned counsel for the petitioner submitted that the petitioner is innocent and he has been falsely implicated. No FIR was lodged by the victim and the FIR was lodged at the instance of the father of the victim. There is no material to connect the petitioner with the commission of the alleged offences. He submitted in alternative that even if there was some sexual relation, it was based upon the consent, therefore, he prayed that the petition be allowed and the petitioner be released on bail.

6. Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. Since the victim was a minor girl aged 15 years, therefore, there can be no question of consent. The petitioner is aged 22 years and mature enough to know the consequences of his act. Therefore, he prayed that the present petiti