Devender Kumar @ Jhangi vs State Of Himachal Pradesh

 Anoop Chitkara, J

A 26 years old boy, accused of committing rape upon 9 years old girl of his village, has come up before this Court under Section 439 of the Code of

Criminal Procedure, 1973 (CrPC), seeking regular bail.

Based on a complaint of the mother of the victim, the police registered FIR No.47 of 2019, dated 19.05.2019, registered under Section 376/511 of

Indian Penal Code, 1860, (IPC), Section 4 and 8 of the Protection of Children from Sexual Offences Act and Section 3(1)(W)(1) of Scheduled Caste

& Scheduled Tribes (Prevention of Atrocities) Act, 1989, in Police Station, Anni, District Kullu, Himachal Pradesh, disclosing cognizable and non-

bailable offences.

Briefly, the allegations against the petitioner are that mother of the victim informed the police that on 19.5.2019, she had gone to cast her vote of

Loksabha and when she returned at 2.00 p.m., she went to bring grass for her cattle. In between she received a call from her father-in-law and she

reached her home, where she noticed the victim was weeping. On inquiry about her crying from the victim, her daughter, the victim told her that when

she was playing with her friend in the School, then at 2.00 p.m., the accused came there and hand her over a 10 ruppes note and asked her to bring

Kurkure. Upon this, she went to the shop, which was closed and she returned to the accused and told him that the shop is closed. After that the

accused told her that he will give her more money and asked her to come to the room on a dilapidated house. On entering there, he committed rape

upon her and also told that he will solemnized marriage with her.

In the bail petition, learned counsel for the petitioner has annexed the statement of the witnesses. Given the same, Mr. Ram Lal Thakur, learned

Assistant Advocate General submits that he does not want to file any status report.

I have heard the counsel for the parties and gone through the petition.

The main contentions of the learned counsel for the petitioner is the statement of PW-12, Dr. Priyanka Thakur, who stated in her cross-examination

that no sexual intercourse was found to have been committed with the victim. Mr. Ram Lal Thakur, learned Assistant Advocate General contended

that even if the statement of doctor is taken to be true, still it does not absolve the accused for the commission of rape.

I have gone through the statement of PW-12 Dr. Priyanka Thakur, Medical Officer, CH Anni. In her examination-in-Chief, she stated that after

receipt of FSL report in her opinion, possibility of sexual intercourse cannot be ruled out. However, during cross-examination, she admitted that in case

a girl aged 9 years is subjected to rape, then there are likely be considerable injuries on her private parts particularly labia majora and labia minora,

hymen, fourchette and even in vaginal canal. She further admitted that she did not notice any injury on any of such parts. She admitted it to be correct

that the possibility of sexual intercourse could be ruled out and even after perusal of the FSL report, no sexual intercourse is found to be committed.

Initially, she stated that inadvertently she had given the opinion that the possibility of sexual intercourse cannot be ruled out but as per my medical

examination and as per RFSL report, she was of the opinion that no sexual intercourse, had taken place. The appropriate stage for analysis of these

evidence is for the trial Court while pronouncing judgment. Any opinion, by this Court on appreciation of this evidence might prejudice the trial.

However, for the purpose of bail, it is sufficient to state that what the doctor had ruled out was sexual intercourse and not an attempted sexual

intercourse.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

Given above, there is no merit in this petition and the same is accordingly dismissed.