JUDGMENT :

SANDEEP SHARMA, J.

1. Bail petitioner namely, Veer Bhadur @ Vishal, who is behind the bars since 30.3.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No. 36 of 2019, dated 30.3.2019, under Sections 363, 366-A, 376, 342 of IPC and Section 4 of the POCSO Act, registered at police Station, Rohru District Shimla, Himachal Pradesh.

2. Sequel to order dated 3.3.2021, ASI Ram Swaroop, has come present alongwith the record. Mr Kunal Thakur, learned Deputy Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.

3. Careful perusal of status report/record made available to this Court reveals that on 30.3.2019, victim/ prosecutrix, aged 15 years (name withheld to protect her identity), got her statement recorded under Section 154 Cr.P.C at police Station, Rohru, District Shimla, Himachal Pradesh, alleging therein that on 22.2.2019, at about 4-5 PM, present bail petitioner came to her Dera and asked her to accompanying him to his Uncle’s house. She alleged that till, Mahendali bail petitioner took her on foot, whereafter they both went to Jubbal in a car. Victim/prosecutrix alleged that the bail petitioner took her to a room, where already three Nepalis were present. She alleged that during night bail petitioner sexually assaulted her against her wishes. Though, on the next day victim/prosecutrix asked the bail petitioner to go out, but he refused and again sexually assaulted her against her wishes. She alleged that next day, her parents came to the room of the bail petitioner alongwith the police and they both were taken to police Station, Rohru on 24.2.2019. Since, victim/prosecutrix did not level any allegation of sexual harassment against the present bail petitioner and refused to undergo medical examination, no FIR came to be registered on 24.2.2019. After 36 days of alleged incident i.e. on 30th March, 2019, victim/ prosecutrix got her statement recorded under Section 154 Cr.P.C., alleging therein that bail petitioner sexually assaulted her against her wishes on two occasions. On the basis of the aforesaid statement, FIR, as detailed hereinabove, came to be lodged against the present bail petitioner and since then he is behind the bars. Challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner. Since medical evidence adduced on record has not indicated towards complicity of the bail petitioner in the alleged offence, he has approached this Court in the instant proceedings under changed circumstances.

4. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting the factum with regard to filing of the Challan in the competent court of law, contends that keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency and as such, prayer made on his behalf for grant of bail may be rejected. Learned Deputy Advocate General submits that though there is delay of 36 days in filing the FIR, but this Court cannot lose the sight of the fact that victim/prosecutrix being minor was under Trauma and as such, failed to disclose the true facts to the police at the time of her recovery from the room of the bail petitioner and as such, delay, if any, in filing the FIR cannot be made a ground to enlarge the bail petitioner on bail. Learned Deputy Advocate General further submits that the medical evidence, especially, DNA Profile report cannot be made basis to rule out the complicity, if any, of bail petitioner in the alleged offence, especially when victim/prosecutrix in her statement has categorically alleged that she was subjected to forcible sexual intercourse on two occasions.

5. Having heard learned counsel representing the parties and perused the material available on record, this