Mulchand Sahu v. State Of Chhattisgarh

-1NAFR HIGH COURT OF CHHATTISGARH, BILASPUR MCRC No. 1356 of 2017 Mulchand Sahu S/o Shri Johan Lal Sahu, Aged About 24 Years R/o Village Amalidih (Barpali), Police Station Gidhouri, Civil & Revenue District Baloda Bazar Bhatapara, Chhattisgarh.

---- Applicant

Versus

State Of Chhattisgarh Through Station House Officer, Police Station Gidhouri, Civil & Revenue District Baloda Bazar Bhatapara Chhattisgarh. ---- Respondent For Applicant :

Shri S.K. Guha, Advocate For Respondent/State :

Shri Neeraj Sharma, Dy. Govt. Advocate S.B.

Hon'ble Shri Justice Manindra Mohan Shrivastava Order On Board 06/03/2017 Heard.

1. The applicant has been arrested in connection with Crime No.239 of 2013 registered in Police Station- Gidhouri (Gramin), District -Baloda BazarBhatapara (C.G.) for alleged commission of offence under Sections 363, 366 and 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012.

2. Case of the prosecution, in brief, is that the applicant kidnapped the prosecutrix and it is alleged that thereafter, he committed rape on her. The prosecutrix stated to be less than 18 years of age when the applicant committed sexual intercourse with her.

3. Learned counsel for the applicant submits that the statement of the prosecutrix recorded under Section 164 Cr.P.C. clearly shows that the applicant and the prosecutrix had an affair. He submits that according to the prosecutrix, the applicant and the prosecutrix had married and then only they were blessed with

-2two sons, which shows that there was no sexual intercourse committed by the applicant with the prosecutrix prior to marriage. The prosecutrix was more than 15 years of age at that point of time. Therefore, offence under Section 376 IPC would not be made out in view of provision contained in exception-2 to Section 375 IPC.

4. On the other hand, learned counsel for the State has opposed the bail application. He submits that as the prosecutrix was less than 18 years of age, consent is immaterial and sexual intercourse will, prima facie, make out a case under Section 376 IPC.

5. Having considered the submissions made by learned counsel for the parties, particularly taking into consideration that the prosecutrix in her statement under Section 164 Cr.P.C. has stated regarding solemnization of marriage and given birth to two sons only after solemnization of marriage and further taking into consideration the submission that the prosecutrix, at that time, was more than 15 years of age and the provision contained in exception-2 to Section 375 IPC, I am inclined to enlarge the applicant on bail.

6. The application is accordingly allowed. It is directed that the applicant shall be released on bail on his furnishing a personal bond in the sum of Rs.20,000/- along with one local surety for the like amount to the satisfaction of the concerned trial Court with following further conditions: (i) The applicant shall not act in any manner which will be prejudicial to fair and expeditious trial; and (ii) The applicant shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial. Certified copy as per rules.

Sd/- (Manindra Mohan Shrivastava) Judge Praveen