IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P(M) No. 1088 of 2011. Date of decision: 30.12.2011. Dinesh Chand son of late Sh. Atma Ram resident of village Manghra Post Office Devi Dhar, Tehsil Chirgaon, District Shimla, H.P. …..Petitioner. Vs. State of Himachal Pradesh …. Respondent. Application under section 439 of the Criminal Procedure Code for grant of bail in favour of the applicant in First Information Report Number 100/2011 registered against the applicant on 1.9.2011 in Police Station, Chirgaon, under section 376(2), 452 and 506 IPC. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? 1 For the petitioner : Mr. Sunil Mohan Goel, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S.Rana, Asstt. Advocate General. Kuldip Singh, Judge (Oral). This is an application, under section 439 Cr.P.C., for releasing the petitioner on bail in FIR No. 100/2011 dated 1.9.2011, under sections 376 (2), 452, 506 IPC, registered at Police station, Chirgaon, District Shimla. 2. It has been stated in the application that petitioner has not committed any offence to render him liable to be prosecuted Whether the reporters of the local papers may be allowed to see the Judgment? …2… under sections 376(2), 452 and 506 IPC. The petitioner is married having aged mother and two small children. The petitioner is sole bread earner of the family. The petitioner resides in a village having population of over hundred people. 3. The petitioner filed Cr.MP(M) No. 698 of 2011, which was dismissed by this court on 12.9.2011. The petitioner thereafter surrendered before the police. The petitioner filed bail application, which has been dismissed by learned Additional Sessions Judge, Fast Track Court, Shimla on 18.10.2011. The learned Addl. Sessions Judge has not properly appreciated the material on record. The petitioner is in judicial custody for the last more than three months. 4. It has been stated that prosecutrix in her supplementary statement recorded on 2.9.2011 has alleged that she was pregnant on the date of occurrence, but she was not found pregnant when she was medically examined. The petitioner is ready to furnish bail bonds in accordance with the directions of this court. The prayer has been made for releasing the petitioner on bail. 5. The bail application has been opposed by the State by filing status report. It has been stated that case has been registered on the statement of prosecutrix, who came to police station alongwith her husband. It has been stated that on 31.8.2011 her husband was not in the house, the prosecutrix after finishing dinner went in the upper storey for sleeping. Her children were sleeping in a separate room. The petitioner entered the room of the prosecutrix at about 11.00 p.m and committed forcible sexual intercourse with her by extending threats. The petitioner said that he would kill her in case …3… prosecutrix would disclose the incident to anyone. In the meantime, her husband entered the room. The petitioner and her husband had scuffle, but petitioner managed to escape. In hurry, the petitioner left his shirt. On hearing noise, her brother-in-law Satish Kumar and his father Shiv Ram came there. She narrated the incident to them and also to her husband. On this, case was registered. 6. The prosecutrix was found pregnant during medical examination. The petitioner was arrested on 14.9.2011. The prosecutrix aborted on 3.9.2011. On completion of investigation, challan has been submitted on 2.12.2011. The prayer has been made for rejection of bail application. 7. Heard and perused the police file. In the medical of the prosecutrix, the doctor has given opinion that there is nothing suggestive that sexual intercourse has not been done. The prosecutrix has alleged that petitioner has committed forcible sexual intercourse with her. The prosecutrix was examined by the doctor on 1.9.2011. In the status report, it has been stated that UPT test of the prosecutrix conducted on 1.9.2011 was found positive and she was found pregnant, but she aborted on 3.9.2011. 8. It has not been explained how the petitioner entered the room of the prosecutrix in the upper story of the house at 11.00 p.m. There is nothing about the past familiarity of prosecutrix with the petitioner so as to find out element of consent on the part of the prosecutrix. It has been stated in the status report that prosecutrix disclosed the incident immediately to her husband, who returned in the house at that time. The prosecutrix also immediately disclosed …4… the incident to Satish Kumar and Shiv Ram. The prosecutrix has stated that petitioner has committed forcible intercourse with her when she was pregnant and she even aborted thereafter on 3.9.2011. The consent on the part of the prosecutrix for the sexual act will be considered during trial. The petitioner has failed to make out a case for grant of bail. Accordingly, the application is dismissed. 9. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case. The application stands disposed of. December 30, 2011. ( Kuldip Singh ) (Hem) Judge.