IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.704 of 2009. Date of decision: 19.8.2009. Dinesh Kumar Sood …… Petitioner Vs. State of H.P. …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Jagdish Vats, Advocate. For the Respondent : Mr. Anshul Bansal, Additional Advocate General with Mr. R.P. Singh, Assistant Advocate General. Kuldip Singh, Judge. (Oral) This is an application under Section 438 Cr.P.C. for releasing the petitioner on bail in FIR No.58 of 2009 dated 13.8.2009 registered at Police Station, Brow, district Kullu under Sections 376, 323, 506 IPC. Status report has been filed. 2. Heard and perused the record. It has been alleged in the bail application that as per prosecution case the prosecutrix is an unmarried woman aged about 34 years, she took a lift from the petitioner from Rampur in the evening on 8.8.2009 in order to go to Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 her home Nogli where both petitioner and prosecutrix are neighbours. The petitioner took her towards Jagatkhanna in his car and raped the prosecutrix in the car itself and caused simple injury on her person and also threatened her. It has been alleged that the prosecutrix was taken to Rampur Hospital by the petitioner. The prosecutrix insisted that she should be taken to I.G.M.C. Shimla where some diagnostic tests were conducted and she was discharged. The petitioner has been falsely implicated in the case. 3. The further case of the petitioner is that as a matter of fact the petitioner and prosecutrix were intimate with each other and they had developed sexual relations. The prosecutrix was residing with her parents and brother at Nogli from 9.8.2009 on wards but the FIR was registered belatedly later on. The prosecutrix in the hospital had stated that she had received injuries as a result of a fall but later on she had given a twist and got registered the case against the petitioner. The prosecutrix after the alleged occurrence has been demanding from the petitioner a house or she should be settled in his home. On account of unreasonable demands a false FIR has been registered. The medical evidence negates the theory of rape. The prosecutrix is a well educated lady and she cannot be believed to have been subjected to forcible sexual intercourse. 4. The bail application has been opposed by learned Addl. Advocate General, on the basis of status report and police 3 record he has submitted that on 13.8.2009 rapat No.35 was received at about 9.30 p.m. at Police Station for registration of the case. As per the prosecution case, the prosecutrix herself reported the matter and has stated that she daily commutes in between Rampur and Nogli. On 8.8.2009, the petitioner met the prosecutrix at about 7.15 p.m. at Chaudhary Adda and offered her lift in his vehicle for going to Nogli. The petitioner turned his vehicle towards Brow road on the pretext that he had some work at Jagatkhana for about 10 minutes. The petitioner offered cold drink to the prosecutrix and she took only a sip of the cold drink and she found it to be of different taste, she felt shivering in her body after taking cold drink. The petitioner took a turn at place Chati and after crossing Brow road near Bayal at an isolated place the petitioner took out the prosecutrix from the vehicle by pulling her from arm and forcibly raped her against her wish. The prosecutrix started weeping and wanted to run away from that place but petitioner hit her from behind with a stone which landed on her head. The petitioner caught hold the prosecutrix and pulled her hairs and threatened that he would kill her. The petitioner put the prosecutrix again in the vehicle and took her towards Bayal. The petitioner stopped the vehicle at Datnagar and threatened her that if she would reveal the incident to anyone then he would kill her. She could not report earlier due to injuries and out of fear. On this, the case was registered. Mr. Anshul Bansal, learned Addl. Advocate General while opposing the 4 bail application has submitted that custodial interrogation of the petitioner is necessary. 5. I have considered the rival contentions of learned counsel for the parties. Mr. Jagdish Vats, learned counsel for the petitioner has submitted that infact the prosecutrix had earlier stated before the doctor that she had received injuries due to fall. She even made a written complaint to Dy. Superintendent of Police and on that basis the case was registered. Mr. Anshul Bansal, learned Addl. Advocate General has stated that the case has been registered on the basis of rapat made by the prosecutrix herself as indicated in the status report. The case is at initial stage. The sexual intercourse committed with the prosecutrix by the petitioner was consensual or it was forcible is yet to be investigated. The injuries narrated by the prosecutrix and found in the MLC of prosecutrix require investigation. There is no doubt that the alleged occurrence took place on 8.8.2009 and FIR was registered on 13.8.2009. The prosecutrix has given some explanation for late reporting of the incident to the police. The delay part is also to be investigated. The bail application indicates that petitioner and prosecutrix are not strangers. In my opinion, at this stage it is not a fit case to grant pre-arrest bail under Section 438 Cr.P.C. to the petitioner, more particularly when allegations of offence punishable under Section 376 IPC have been made by the prosecutrix against the petitioner. 5 6. The result of the above discussion, the petition fails and is accordingly dismissed. 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. ( Kuldip Singh) Judge August 19, 2009 (sks)