IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.563 of 2008. Date of decision: 18.6.2008. Inder Singh ………. Petitioner Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Petitioner : Mr.Ramesh Thakur, Advocate. For the Respondent : Mr. Ansul Kumar Bansal , Additional Advocate General. Kuldip Singh, Judge. (Oral) 1. This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No.507/07 dated 6.9.2007 registered at Police Station, Kullu under Sections 376, 511 IPC. The respondent has filed the status report. 2. Heard and perused the record. The prosecution case in brief is that Smt. Narkala complainant on 6.9.2007 came to the Police Station and made a statement that prosecutrix is her youngest daughter aged about 11 years studying in 4th class. On 6.9.2007 at about 7 AM the prosecutrix had gone out side for answering the call of nature. Ram Singh brother of the complainant Whether the reporters of the local papers may be allowed to see the Judgment? 2 who had stayed during the night at the house of complainant was going towards Khalyani to his own house. Ram Singh came back along with prosecutrix and informed that petitioner was committing sexual intercourse with the prosecutrix and petitioner attempted to flee on seeing him but he was caught by Ram Singh. They started questioning petitioner but he fled away from that place. The prosecutrix told the complainant that petitioner followed her in the jungle and caught hold her. He forcibly removed her salwar and committed sexual intercourse with her. In the meantime Ram Singh came there and petitioner attempted to run away from that place. The petitioner had committed forcible sexual intercourse with the prosecutrix. On this, case under Section 376 IPC was registered. The prosecutrix was got medically examined and in the MLC doctor has opined “no evidence of penetration”. In these circumstances Section 511 IPC was added. The petitioner was arrested on 8.9.2007 and now he is in judicial custody. 3. During investigation, it was found that on 6.9.2007 at about 7 AM, when prosecutrix was returning to her home after answering the call of nature then petitioner met her on the way and he took her in his lap. He then kissed her and put her on the ground and removed her salwar. He made the prosecutrix to sit on his legs with intention to commit rape. In the meantime, Ram Singh uncle of the prosecutrix came there who also saw the petitioner and the prosecutrix in that position. The prosecutrix was 9 years and 6 months old on the date of occurrence. The challan was filed in the Court on 5.12.2007, charge has been framed and now the case 3 has been fixed for prosecution evidence before the learned Addl. Sessions Judge, Fast Tack Court, Kullu on 25 to 28.6.2008. 4. The learned counsel for the petitioner has submitted that petitioner has been falsely implicated in the case. Initially the case was registered under Section 376 IPC but, when doctor opined “no evidence of penetration” then Section 511 IPC was also added. The learned counsel has submitted that petitioner is innocent. From the bare perusal of the allegations against the petitioner, no case under Section 376 read with Section 511 IPC is made out. There is no allegation that petitioner made an attempt to undress himself. At the most even as per prosecution case it is a case of outraging the modesty of the prosecutrix. The petitioner is already in custody since 8.9.2007. The continuous custody of the petitioner is not necessary. The bail application earlier filed by petitioner was wrongly dismissed by learned Addl. Sessions Judge ( Fast Track), Kullu on 3.11.2007. The learned Addl. Advocate General has opposed the bail application and has submitted that petitioner has committed heinous offence against an innocent girl aged about 9 years 6 months. It was good luck of the prosecutrix that her uncle came on the spot otherwise the petitioner would have ravished the prosecutrix. The learned Addl. Advocate General has submitted that in case petitioner is released on bail, he is likely to influence the witness. 5. I have considered the rival contentions of the parties. As per medical report, the doctor found “no evidence of penetration”. The prosecution has not pointed out that petitioner 4 undressed himself when he allegedly made the prosecutrix to sit on his legs. The allegations against the petitioner are that he forcibly undressed the prosecutrix by removing her salwar. The bail has been opposed on the ground that petitioner has committed heinous offence and the petitioner is likely to influence the witness, in case he is released on bail. Nothing has been placed on record to substantiate the apprehension of the prosecution. In any case, if the petitioner will make attempt to influence the prosecution witnesses, law will take its course. The petitioner has made out a case for grant of bail under Section 439 Cr.P.C. Accordingly application is allowed. The petitioner is ordered to be released on bail in FIR No.507 registered on 6.9.2007 at Police Station, Kullu under Sections 376, 511 IPC, on his furnishing personal bond in the sum of Rs.10,000/- with one surety of the like amount to the satisfaction of the learned Additional Sessions Judge, Fast Track Court, Kullu with the condition that the petitioner shall not tamper with the prosecution evidence in any manner. 6. 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 on usual terms ( Kuldip Singh) Judge June 18, 2008 (sks) 5