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Mukesh Kumar vs State Of Haryana on 23 January, 2019

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Criminal Misc. No.M-18814 of 2018
Date of Decision: 23.01.2019
Mukesh Kumar
…Petitioner(s)
Versus
State of Haryana
…Respondent(s)

CORAM:- HON’BLE MR. JUSTICE HARI PAL VERMA

Present:- Mr. Amit Choudhary, Advocate
for the petitioner.
Mr. Manish Bansal, DAG, Haryana.

Mr. Arun Gupta, Advocate for
Mr. N.D. Achint, Advocate
for the complainant.
*****

HARI PAL VERMA, J.

Prayer in this petition filed under Section 439 of the Code of

Criminal Procedure, 1973 is for grant of regular bail to the petitioner in

case FIR No.77 dated 17.11.2017 under Sections 376(2)(n) and 506 IPC

registered at Police Station Women, Panipat, District Panipat.

As per the prosecutrix, the petitioner is her neighbour and

belongs to the same caste. The petitioner-accused used to visit their house

frequently in late/early hours and there were good relations between both

the families. The petitioner was already married and had two children. In

June, 2004, the prosecutrix was about 13½ years of age and was a student

of 9th class. There were vacations in the school and her parents along with

her younger brother and sister had gone to her uncle Sulekh Kumar in

Village Gangoh, District Saharanpur, Uttar Pradesh for some domestic

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work. She was alone in the house. On 27.06.2004, at about 10-00 P.M.,

after having food, when she was sleeping, the accused came to their house

and asked for water. When the prosecutrix went inside the kitchen to fetch

water for him, the petitioner locked the main door and caught her in the

kitchen. After closing her mouth forcibly, he took her inside the room and

committed rape upon her. When she tried to make noise, the petitioner

threatened that in case she tried to make a noise, he would kill her and also

her brother and sisters. Under this fear, she did not make a noise.

Thereafter, as and when she was alone at home, the accused finding an

opportunity, used to rape her. He had threatened her not to tell about it to

anybody. This continued till December, 2013, when the prosecutrix told

him that she would disclose this fact to her parents. The petitioner told her

that he will marry the prosecutrix, for which he has already filed a divorce

petition against his wife. In January, 2014, the petitioner forcibly took the

prosecutrix to Gohana Road, Sanjay Colony, Stree No.1 in the house of

Pawan Rana, where he used to develop physical relations daily. On

18.01.2014, the accused brought her at Sanjay Chowk, Panipat, where he

prepared certain papers and got her signatures so as to give an impression

that Court marriage has been solemnised. On 23.09.2014, the accused

shifted her to Babail Road, Ram Nagar in the house of Rohtash and assured

her that he would solemnise marriage with her. Since the prosecutrix was

pregnant from the petitioner, on 07.12.2014, a male child was born to her.

In this manner, FIR in question was registered.

Learned counsel for the petitioner has argued that the

petitioner has falsely been implicated in the aforesaid FIR. The petitioner

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is already married, having two children from his wife. After registration of

the FIR, statement of the prosecutrix was recorded under Section 164

CrPC, wherein she has admitted that the petitioner and the complainant

used to reside as husband and wife voluntarily and a male child was born

out of this relationship. The prosecutrix has refused to get her medico-legal

examination conducted, which falsifies the story put forward by the

prosecution. Challan has been presented and charge has not yet been

framed. Right from the year 2014 till 2017, the petitioner and the

prosecutrix were in a consensual relationship. The continuous consensual

physical relations could not be termed as rape. They are known to each

other for the last more 10 years. Consensual intercourse would not amount

to rape.

On the other hand, learned State counsel has argued that the

petitioner has committed rape upon the prosecutrix against her consent and

therefore, he does not deserve to be admitted on bail. Petitioner has

committed rape upon the prosecutrix when she was hardly 13½ years of

age.

I have heard learned counsel for the parties.

On July 30, 2018, learned State counsel had apprised this

Court that statement of the complainant is yet to be recorded in the case.

Thereafter, an application under Section 319 CrPC was filed before the trial

Court, which was pending consideration on 16.11.2018. Pursuant to order

dated 11.01.2019, the complainant is present in Court.

The allegation against the petitioner is that he has committed

rape upon the complainant when she was about 13½ years of age. Despite

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being married, he had developed physical relations with the complainant

and out of this relationship, a child was born. The petitioner was abusing

the prosecutrix physically under the garb of marrying her, despite the fact

that he was already married and was having children from his marriage.

The prosecutrix has a child of about 3 years and is without any shelter. The

allegations against the petitioner are quite serious. In case he is enlarged on

bail at this stage, there is a possibility that he may influence the witnesses,

as the prosecutrix has alleged that the petitioner used to commit rape while

extending threats.

Considering the financial condition of the prosecutrix, who is

to survive along with her minor son, this Court has proposed the petitioner

to pay a compensation of Rs.10,00,000/- to the prosecutrix ‘at this stage’ so

that the complainant can survive along with her minor child, but counsel

for the petitioner has not shown any inclination towards it.

Be that as it may, considering the fact that there are serious

allegations against the petitioner and he had started committing rape upon

the prosecutrix when she was hardly 13½ years of age and continued to

exploit her physically, while giving a false assurance that he will marry her

and resultantly, a child was also born out of this relationship, this Court

finds that the petitioner does not deserve to be admitted on bail.

Accordingly, the present petition is dismissed.

January 23, 2019 ( HARI PAL VERMA )
AK JUDGE

Whether speaking / reasoned? Yes / No
Whether reportable? Yes / No

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