The presumption of innocence until guilt is proven and the need to balance competing factors in granting bail.

JUDGMENT

Sandeep Sharma, J. - Bail petitioner namely Pinku Kumar, who is behind the bars since 22.7.2020, has approached this court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in case FIR No. 24, dated 21.7.2020 under Ss. 376(2)(L), 323 and 506 IPC, registered at Women Police Station Solan, District Solan, Himachal Pradesh.

2. In terms of orders dated 29.1.2021 and 3.3.2021, respondent-State has filed status report. HC Virender No.60 of Women Police Station, Solan has also come present alongwith record, perusal whereof suggests that on 21.7.2020, complainant/victim-prosecutrix, who is deaf and dumb, lodged a complaint at Women Police Station Solan, alleging therein that on 21.7.2020, at 10.00 am, bail petitioner, who happened to be her brother-in-law, sexually assaulted her against her wishes. She further alleged that since at the time of alleged incident, her husband was not at home as he had gone out for work, bail petitioner, taking undue advantage of her loneliness, sexually assaulted her against her wishes, as such, appropriate action in accordance with law, be taken against the bail petitioner/accused. On the basis of aforesaid complaint, FIR detailed herein above came to be lodged against the bail petitioner and since then, he is behind the bars. After completion of investigation, police has filed Challan in the competent Court of law, but yet the charges are to be framed. Before adverting to the factual matrix of the case, it is pertinent to take note of the fact that prior to filing the petition at hand, bail petitioner had earlier approached this Court for grant of regular bail, but the same was dismissed as withdrawn. Now since the DNA profiles of the complainant and the bail petitioner have not matched, fresh prayer has been made on behalf of the bail petitioner for grant of bail, by way of present proceeding.

3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of Challan in the competent Court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, as such, his prayer for grant of bail, deserves outright rejection. Mr. Bhatnagar, learned Additional Advocate General, further contends that though as per FSL report, DNA profiles of the complainant and bail petitioner have not matched, but that cannot be made basis to conclude innocence, if any, of the bail petitioner, especially when there is overwhelming evidence available on record, suggestive of the fact that on the date of alleged incident, bail petitioner taking undue advantage of the loneliness and innocence of the victimprosecutrix, sexually assaulted her against her wishes. Lastly, Mr. Bhatnagar, learned Additional Advocate General contends that since statement of the victim-prosecutrix is yet to be recorded, it nay not be in the interest of justice to enlarge the bail petitioner on bail, who, in the event of being enlarged on bail, may not only flee from justice but may also cause harm to the victim-prosecutrix.

4. Having heard learned counsel for the parties and perused the material available on record, this court finds that on 21.7.2020, victim-prosecutrix got her statement recorded under S.154 CrPC with Women Police Station Solan, alleging therein that on 21.7.2020, at 10.00 am, she was raped by the bail petitioner, who happened to her brother-in-law, but, interestingly, in her subsequent statement recorded under S.164 CrPC, on 7.8.2020, she alleged that on 21.7.2020, bail petitioner sexually assaulted her against her wishes during day time and, when her husband came back at 2.00 am, in the intervening night of 21st and 22nd July, 2020, she disclosed entire incident to him and thereafter, she lodged the complaint. If the version put forth by the victim-prosecutrix recorded before learned Judicial M