The credibility of the victim's statement is crucial in cases of rape, and if bail is granted in a manner that smacks of arbitrariness or perversity, the higher court has a duty to cancel the bail.

G. B. PATTANAIK, J.

( 1 ) THE father of the victim girl has invoked the jurisdiction of this Court u/ S 439 (2) of the Code of Criminal Procedure for cancelling the bail of opposite party No. 1 against whom the allegation is that he kidnapped the minor victim girl Gitanjali and committed rape on her. The petitioner lodged the FIR on 6-6-1990 at 12 Noon stating therein that his daughter Gitanjali was not found from the house since 1-6-1990. After expiry of 4 days on getting intimation that Gitanjali was seen in the company of opposite party No. 1 at Jigina Gaon, the petitioner went and rescued his daughter. It was learnt from the daughter that opposite party No. 1 had committed rape on her on several occasions by temptation and by force and, therefore, appropriate criminal action should be taken. Opposite party No. 1 was taken into custody on 9-6-1990. The said opposite party No. 1 having moved an application for bail, the learned Sessions Judge disposed of the application releasing opposite party No. 1 on bail without getting the case diary and without knowing the materials against opposite party No. 1. The petitioner has, therefore, approached this Court for cancellation of bail of opposite party No. 1. Pursuant to notice, opposite party No. 1 has entered appearance through counsel.

( 2 ) MR. Rath for the petitioner contends that in view of the gravity of the offence and in view of the statement of the victim girl clearly indicating how the accused-opposite party No. 1 committed rape on her, the learned Sessions Judge arbitrarily and whimsically released opposite party No. 1 on bail and thereby there has been gross miscarriage of justice and the learned Sessions Judge has committed serious lapse in exercise of his judicial discretion by releasing opposite party No. 1 on bail merely on the ground that the case diary had not been produced before him inspite of repeated requests. Mr. P. K. Misra, the learned counsel for opposite party No. 1, on the other hand, contends that the Sessions Judge having exercised his discretion and having granted bail and no new material pointing to the guilt of the accused having been discovered, the order releasing opposite party No. 1 on bail need not be lightly interfered with by this Court u/ S. 439 (2) of the Code of Criminal Procedure. Mr. Misra further contends that in view of the medical evidence, it cannot be said that there is any prima facie case against opposite party No. 1 of having committed rape on the victim girl.

( 3 ) IN course of hearing of this application, the case diary was produced before me. The father in the first information report has indicated that the age of the victim girl is 13 years. The victim girl in her statement u/s. 161 of the Code of Criminal Procedure has vividly described as to how accused- opposite party No. 1 committed rape on her on several occasions. The statement of one Surekha Digal, wife of Kartik Digal corroborates the fact that the accused took the victim girl and had approached her to give shelter at night and before her the victim girl had also indicated that the accused had committed rape on her. Several other statements of witnesses in the case diary corroborate the fact that the victim girl had narrated before them about the incident after the victim girl was found from the company of the accused. The victim girl was examined by the doctor on 7-6-1990 and the doctor reported that there was no sign of recent sexual intercourse, but the girl had sexual inter-course. The vaginal fluid from the victim girl having been examined by the Pathology Specialist, it was found that there were very few dead spermatozoa. The Radiologist after ossification test has opined that the age of the girl would be more than 15 years and less than 17 years.

( 4 ) IN the aforesaid state of affairs, the question that arises for consideration is whether the learned Sessions Judge was at all justified in releasing opposite party No. 1 on bail. From the materials on record