Dilshad @ Sharda vs State of U.P.

Hon''ble Ajai Lamba, J.—This petition prays for bail in Case Crime No. 679 of 2011, under Sections 363/366/376 I.P.C., Police Station Dargaha Sharif, District Bahraich. Learned counsel appearing for the petitioner at the outset contends that a case of rape is not made out, even if, the stand of the prosecutrix given out in her statement u/s 164 Cr.P.C. is considered.

Learned counsel further contends that the prosecutrix admittedly lived with the petitioner of her own Will and accord for more than two months.

Learned counsel appearing for the respondent-State has not disputed the contents of the statement of the prosecutrix u/s 164 Cr.P.C., Annexure-5 or the fact that the prosecutrix lived with the petitioner in his house from 13th of July, 2011 till 21st of September, 2011.

I have considered the contention of the learned counsel.

Age of the prosecutrix as given out by her is 18/19 years. In the statement u/s 164 Cr.P.C., the prosecutrix admits that she called the petitioner to her house and went with the petitioner to Jamuna Nagar, however, on the allurement that he would give Rs. 3 lacs and would get the prosecutrix employed.

The statement further narrates that the prosecutrix lived with the petitioner for two and half months in Jamuna Nagar, however, did not get married to him. They lived in one room and used to sleep together. Thereafter, they wanted to go to Nepal, therefore came to Bahraich. The prosecutrix further states that she did not want to go to the parent''s house, however, the police apprehended the prosecutrix at Baharich railway station and sent the petitioner to jail and the prosecutrix to female police station. In the concluding portion, the prosecutrix states that in case Rs. 3 lacs are given, the prosecutrix would get married to the petitioner, in case he does not give the money as demanded, the prosecutrix would not get married to the petitioner. While narrating the details, the prosecutrix also states that the petitioner had physical relations with the prosecutrix per force.

Be that it may, considering the totality of the stand taken by the prosecutrix in her statement u/s 164 Cr.P.C., it would be evident that she has attained the age of majority and went alongwith the petitioner of her own Will. Allurement, however, would be a moot point to be considered by the trial court, after taking evidence. Considering the stand of the prosecutrix as noted above, it would have to be determined whether rape has been committed or not.

In view of the age of the prosecutrix, contents of her statement u/s 164 Cr.P.C. and the fact that investigation has already been concluded and the petitioner is not in a position to influence the investigation process, petition is allowed.

Bail to the satisfaction of the court concerned. The facts have been considered for the limited purpose of bail and are not finding recorded on merits in the case.