IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P(M) No.797 of 2008. Date of decision: August 12, 2008. Kapil Bhardwaj …..Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Anup Chitkara, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). The petitioner has filed this application, under Section 439 Cr.P.C., for releasing him on bail in FIR No. 38 registered on 10.6.2008 at Police Station, Rajgarh, under Sections 376, 342, 34 and 120-B IPC. The status report has been filed. According to learned Additional Advocate General investigation in the case is almost complete. The report of Chemical Examiner is awaited and thereafter the challan would be presented in the court. 2. Heard and perused the record. The prosecution case in brief is that on 10.6.2008 the prosecutrix aged 22 years accompanied with her aunt (Mami) had reported the matter at Police Station, Rajgarh that prosecutrix was brought up by her Mama and married Whether the reporters of the local papers may be allowed to see the Judgment? …2… last year. Her father had died and mother solemnized second marriage, she is Matriculate. On 6.6.2008, she had gone to her parents house at Chogatli, on 7.6.2008 her husband had gone to his own village and she came to Rajgarh for purchasing medicines. At about 2.00 p.m., Ashok Pundir her god-brother met her at Rajgarh Bazar and both of them had proceeded towards hospital. On the way Pandit met them, who was known to her and he asked her to go to his quarter for offering Pooja. Upon this, she and Ashok Pundir went to the quarter of Pandit. In the meantime, Pandit received phone call from someone and told her that he will have to go to Dahan and all three of them came on the road. Ashok left the place, as he had to catch bus, Pandit demanded money from her and told her to sell her “Payal” but goldsmith refused to purchase the “Payal”. Thereafter, she got herself checked up in a private clinic and went to new bus stand. She wanted to go to Dahan to meet the daughter of her Mama but no bus for Dahan was available at that time. She boarded Haripurdhar bus and went up to Kheradhar in that bus, from there she started walking towards Dahan. It was already dark when she reached Nichla Dahan. In the meantime, a vehicle came from Uperla Dahan side in which in addition to driver, Pandit was also sitting who asked her to sit in the vehicle as she was to offer Pooja. They reached Rajgarh, Pandit got down from the vehicle near his room and asked Kapil to take her and he would come back after some time. Kapil took the vehicle for a quite distance, stopped the vehicle, came out, and told her that he had taken a room at that place. She kept on sitting in the vehicle, Kapil came there after sometime and took her to …3… a room on the upper side of the road. Kapil caught hold her from breasts, laid her on the bed and committed forcible sexual intercourse with her. Thereafter Kapil came out of the room and another person who was under the influence of liquor entered the room and said that Kapil had sold her to him. The said man also had forcible sexual intercourse with her and thereafter he left the place after closing the door from outside. After some time, the prosecutrix heard the sound of starting of vehicle. Kapil came next day at about 10.00 O`clock in the room and she told him that let her go to her own home, but he refused her to come out of the room. He kept her in the room without any water and food. On 8.6.2008, Kapil again came in the room at 10.00 or 11.00 p.m. and had forcible sexual intercourse with her and left the place. On 9.6.2008, during the day when Kapil was sitting with her, he received a phone and went outside the room, at about 6.00 or 7.00 p.m. Kapil sent her in a vehicle, but did not accompany her and the driver of that vehicle dropped her at Nichla Dahan from there she went to the house of her Mama Dhanbir and at about 9.00 p.m. her aunt came there and the prosecutrix narrated the incident to her. She later on came to know that vehicle No. HP-16-2322 is owned by Kapil. On this FIR was registered. The prosecutrix was examined by the doctor at about 11.30 a.m. on 10.6.2008. The doctor has opined that there are no active signs of fresh sexual intercourse, however, final opinion will be given after Chemical Examination of sealed material from Forensic Science Laboratory, the lady is married, she is habitual of sexual intercourse. The petitioner and Varinder Dutt Pandit were arrested. The prosecutrix made a …4… supplementary statement on 17.6.2008, wherein she has stated that Pandit took her inside the room, bolted the door and gave her something sweet to eat and pressed her breasts. She has also stated that Pandit came out of the vehicle at Rajgarh and asked Kapil to take the prosecutrix and he would come after some time. Kapil had consumed liquor and was not in a position to speak properly, but he took her in the room and committed forcible sexual intercourse with her. Pandit came there and he had also forcible sexual intercourse with her. 3. The learned counsel for the petitioner has submitted that petitioner has been falsely implicated in the case. The name of the petitioner incidentally is Kapil, but no identification parade has been conducted during investigation. The petitioner is not the person who has committed forcible sexual intercourse with her. The learned counsel for the petitioner has submitted that even as per the prosecution case, no case under Section 376 IPC etc. is made out against the petitioner. The prosecution story leads to an inference that prosecutrix had voluntarily consented for sexual intercourse. According to prosecution, the prosecutrix remained in the room almost from 7.6.2008 evening till 9.6.2008 evening. The room is situated at a busy place, rather room is a part of multi-storeyed building, but surprisingly no one had responded to the shrieks, cries of the prosecutrix and she quietly left the place on 9.6.2008 in the evening. The prosecutrix in the FIR has also named some unknown person, who had also committed sexual intercourse with her, but in her supplementary statement, she has not stated so. The learned …5… counsel for the petitioner has also submitted that the prosecutrix had been moving with different persons just on their asking which fact also suggests her voluntary participation for sexual intercourse. The learned counsel for the petitioner has submitted that Varinder Dutt Pandit has been released on bail and on account of parity the petitioner is also entitled to bail. 4. The learned Additional Advocate General has opposed the bail application and submitted whether sexual intercourse was with the consent of prosecutrix that would be seen during trial. The prosecutrix has named the petitioner and there is no reason to disbelieve the prosecution at this stage. The petitioner has committed serious offence by taking advantage of the situation and therefore, he is not entitled to bail. 5. I have considered the rival contentions of the parties and gone through the record. In the FIR and the supplementary statement of prosecutrix there are material deviations. The prosecutrix is 22 years of age, she remained inside the room for about 48 hours and during this period according to her she was ravished several times, the third person who allegedly committed sexual intercourse with her has not been identified, the person who dropped the prosecutrix on 9.6.2008 at Nichla Dahan has also not been identified. I have perused the MLC of the prosecutrix. The room in which the prosecutrix was allegedly ravished for about two days is a part of multi- storeyed building which is situated in a busy locality. It is natural that a woman would resist and cry for help during the process of forcible sexual intercourse with a stranger against her …6… wish. It is difficult to believe that during the period when the prosecutrix was confined in the room, nobody heard her shrieks, cries when she was being ravished. It is not the case of the prosecution that during the confinement of prosecutrix in the room, the petitioner or someone else continued to stay with her, why no attempt was made by the prosecutrix to come out of the room when she was alone in the room that has not been explained by the prosecution. According to the learned Additional Advocate General the investigation in the case is almost complete and the report of the Chemical Examiner is awaited. It is not clear how much time trial will take. Therefore, in the totality of the facts and circumstances of the case, the petitioner has made out a case for grant of bail. Accordingly, the application is allowed and the petitioner is ordered to be released on bail in FIR No. 38 registered on 10.6.2008 at Police Station, Rajgarh, under Sections 376, 342, 34 and 120-B IPC, on his furnishing personal bond in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of learned Additional Sessions Judge, Sirmour District at Nahan with the conditions that petitioner shall not hamper the investigation and tamper with the prosecution evidence in any manner. 6. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case. 7. Dasti copy on usual terms. August 12, 2008. ( Kuldip Singh ) (Hem) Judge.