Cr.M.P.(M) No. 867 of 2008 3.9.2008 Present: Mr. C.N. Singh, Advocate for the petitioner. Mr. Rajinder Dogra, Addl. A.G. with Mr. Vikas Rathore, Dy.A.G. for the respondent. This is an application under Section 439 of the Code of Criminal Procedure for releasing the petitioner on bail in FIR No. 149 of 2008 dated 11.8.2008 registered at Police Station, Theog, District Shimla, H.P. under Section 376 read with Section 506 of the Indian Penal Code. The respondent has filed the status report. I have heard the learned counsel for the parties and have perused the record. The prosecution case in brief is that the petitioner along with one Chattar Singh visited the house of the prosecutrix at 6.00 PM on 9.8.2008. The petitioner enquired about the son of the prosecutrix, Shri Khem Chand. Thereafter, the petitioner left the house. However, when the prosecutrix went to the forest to cut the grass, he caught hold of her and committed rape on her. The prosecutrix was medically examined on 11.8.2008. The petitioner was also medically examined on 12.8.2008. The learned counsel for the petitioner has submitted that his client is innocent and has been falsely implicated in the case. He further submits that the investigation in the case is complete and nothing is to be recovered from the petitioner. The petitioner is ready and willing to furnish requisite bail bonds in case he is released on bail. The petitioner had earlier filed an application under Section 438 of the Code of Criminal Procedure before the learned Sessions Judge, Shimla. The bail application was rejected by the learned Sessions Judge on 21.8.2008. The bail application has been opposed by the learned Additional Advocate General. In the status report, it has been stated that there is sufficient evidence on record to prove the commission of offence by the petitioner. It has further come in the report that pursuant to the registration of the F.I.R., the prosecutrix and the petitioner were got medically examined and the broken bangles of the prosecutrix were recovered. The report from the Forensic Science Laboratory, Junga is awaited. The petitioner was arrested on 22.8.2008. I have gone through the record produced by the learned Additional Advocate General as well as the status report minutely. The incident has taken place on 9.8.2008 in the evening. The F.I.R. was registered at Police Station, Theog by the prosecutrix on 11.8.2008 in the afternoon. It is evident from the record that the prosecutrix had informed her husband-Hari Dass telephonically about the incident in the evening of 9.8.2008 itself. The moment, the husband of the prosecutrix had received the telephonic call, he was bound to return back to his house to facilitate the lodging of F.I.R. The Court put a specific query to the learned Additional Advocate General, on which date the husband of the prosecutrix came to his house. The answer was that Hari Dass came to his house on 15.8.2008. The statement of Hari Dass was also recorded under Section 161 of the Code of Criminal Procedure on 15.8.2008. Shri Chattar Singh, whose statement was also recorded under Section 161 of the Code of Criminal Procedure, has stated that he came to know about the alleged incident only when he received telephonic call from Hari Dass on 10.8.2008. The husband’s absence from 9.8.2008 to 15.8.2008 has not been explained by the prosecution. It casts doubt in the mind of the court whether the offence has been committed as stated by the prosecution or not, since in normal circumstances, if heinous crime is committed, the husband was supposed to rush back immediately. The explanation for lodging the F.I.R. belatedly has not been explained by the prosecution. The only explanation given is that the prosecutrix was scared of the petitioner. It has come on the record that the telephone facility was available in the house of prosecutrix. In fact, she has informed her husband on 9.8.2008 over telephone. Since the telephone was available with the prosecutrix, she could inform the police on telephone or she could inform the members of the Gram Panchayat and other members of the locality over telephone. The presence of the petitioner at the house of the prosecutrix on 9.8.2008 in the evening is very intriguing. The purpose of his visit has not been explained. In these circumstances, the possibility of the prosecutrix going with the petitioner at her free will or volition cannot be ruled out. I have gone through the medico legal certificate issued by the doctor who has examined the prosecutrix. There are no injury marks on any part of her body. If she had been thrown on the ground by the petitioner, there were bound to be bruises on her body. It has also come in the evidence that the prosecutrix’s ‘Bahu’- Lata Kumari was also present in the house. If the prosecutrix had raised hue and cry, Lata Kumari was bound to reach the spot. It has not come in the evidence that Lata Kumari had reached the spot. In the facts and circumstances of the case, the petitioner has made out a case for the grant of bail under Section 439 of the Code of Criminal Procedure. Accordingly, the application is allowed. The petitioner is permitted to be released on bail in FIR No. 149/2008 on his furnishing personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge/Additional Sessions Judge, Shimla. The petitioner shall not tamper with the prosecution evidence in any manner. The observations made in this order are for disposal of this application and these shall not be treated as expression of opinion on the merits of the case. Copy ‘Dasti’. (Rajiv Sharma), J. September 3, 2008. (cr)