Mushtaqu Alias Bali vs State Of Haryana on 9 September, 2009

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH




                         Criminal Misc. No. M-19566 of 2009
                         Date of decision : September 09, 2009


Mushtaqu alias Bali
                                             ....Petitioner
                         versus

State of Haryana
                                             ....Respondent


Coram:       Hon'ble Mr. Justice L.N. Mittal


Present :    Mr. MS Rakkar, Senior Advocate with
             Mr. Vikram Bali, Advocate, for the petitioner

             Mr. Sidharth Sarup, AAG Haryana


L.N. Mittal, J. (Oral)

Mushtaqu alias Bali has filed this petition for bail in case FIR

No. 308 dated 1.10.2008 under sections 363, 366-A, 376(2)(G), 506 read

with section 34 IPC(section 216 IPC added later on) , Police Station

Punhana, District Mewat.

I have heard learned counsel for the parties and perused the

case file.

According to the prosecution version, prosecutrix aged 12/13

years was kidnapped by petitioner and his two co-accused on 28.9.2008 and

was gang raped by them and was left on 29.9.2008.

Learned counsel for the petitioner contended that there is no

evidence regarding age of the prosecutrix. It was also contended that some

birth certificate has been obtained by the police showing date of birth of the
Criminal Misc. No. M-19566 of 2009 -2-

prosecutrix as 5.6.1991 showing her to be above 17 years of age.

However, learned State counsel, on instructions from ASI Chand Ram,

states that no such birth entry has been obtained by the police. Petitioner

has also not produced any such birth entry on the record. Learned counsel

for the petitioner also contended that the prosecutrix has since been married

in May, 2009 and it also depicts that her age is above 18 years. The

contention cannot be accepted because child marriages are not un-common,

particularly in Muslim families in Mewat area. In addition, the age of the

prosecutrix is irrelevant when it has been stated by her during investigation

that she was kidnapped and gang raped by the petitioner and his two co-

accused against her consent and wishes. Learned State counsel states that

even statement of the prosecutrix has been recorded by Judicial Magistrate

under section 164 Cr.P.C. to this effect. Under section 114-A of the

Evidence Act, there is presumption that sexual intercourse was against the

consent of the prosecutrix, if she makes statement to this effect. For the

same reason, the contention that the prosecutrix suffered no injury, would

not come to the rescue of the petitioner at this stage. According to the

prosecution version, it is a case of gang rape. The age of the prosecutrix

was 12/13 years only at the time of occurrence.

In view of the aforesaid, in my considered opinion, the

petitioner does not deserve the concession of bail. The instant bail petition

is accordingly dismissed but without meaning to express any opinion on

merits.

                                                       ( L.N. Mittal )
September 09, 2009                                          Judge
  'dalbir'