The legal principle established in the judgment revolves around the gravity of the offence, evidence collection, and the interpretation of rape and penetration as defined in Section 375 IPC and relevant case laws.

JUDGMENT

Anoop Chitkara, J. - The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail on the grounds that he is in jail w.e.f. 8.11.2020.

2. Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 17.12.2020 learned Special Judge, Shimla HP, dismissed the petition because of the gravity of the offence. After that the petitioner filed a petition before this Court, which was registered as Cr.MP(M) No.104 of 2021. However, on 4.2.2021, the same was dismissed as withdrawn with liberty to file fresh one.

3. In Para 10 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 1.11.2020, on some information of a whistle blower, the police officials inspected the house of one Brij Lal Puri. On search, they noticed a small girl, who was employed as a domestic help who belonged to Madhya Pradesh. She further informed the police that before lockdown, she was brought to Shimla by the son of her uncle to do household work in the house of Brij Lal Puri. Said Brij Lal Puri and his wife Aarti not only kept the victim in their house without the consent of her parents but also did not inform the police about it. The victim cannot speak or understand Hindi. On this, the Police registered the FIR mentioned above.

5. Subsequently, the victim was taken to IGMC for ossification test, where the doctors opined her age to be between 12 to 14 years. The police also took into possession CCTV footage. The police was experiencing communication difficulty because the victim belongs to remote area of Madhya Pradesh. After recording the statement of the victim under Section 161, Cr.PC, she was sent to Child Care Institute, Tuti Kandi. Subsequently, her statement under Section 164, Cr.PC was recorded on 5.11.2020. After that, father of the victim and one relative visited Shimla and joined investigation. On 7.11.2020, the father of the victim told the investigator that while interacting with her, she disclosed to him that she was sexually exploited by Suresh Kumar (bail petitioner herein), who is employee of Brij Lal Puri. Upon this, she was sent to IGMC for medical examination and MLC was procured. Investigation further revealed the age of the victim as 14 years. The genetic material obtained from the victim tested negative in the absence of human semen on all the exhibits, however, the doctor opined that the possibility of sexual intercourse cannot be ruled out.

6. Status report revealed that police has launched prosecution on 7.1.2021 by filing a complaint under Section 173(8), Cr.PC. Impliedly, report under Section 173(2), Cr.PC was also prepared.

7. Mr. Satyen Vaidya, learned Senior Advocate, assisted by Mr. Varun Chandel, learned counsel for the petitioner argued that in the first statement recorded on 1.11.2020, the victim did not mention about any rape. Learned counsel argued that it was on 7.11.2020, when the victim mentioned about the rape in her statement recorded under Section 161 Cr.PC. Further, learned counsel has drawn attention to the medical report which shows that hymen of the victim was intact and learned counsel argued that the victim in her statement under Section 161 Cr.PC, in answer to question No.15, had stated that the accused had raped her on three occasions. Had that been so, her hymen would have definitely been ruptured, as there was none to stop the accused from complete penetration. Learned counsel further submits that the presence of hymen shows that the victim improved her story and falsely implicated the accused.

8. On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner. Another argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abidi