Onkar Chand vs State of H.P.

Dev Darshan Sud, J.—The petitioner has approached this Court u/s 438 of the Code of Criminal Procedure praying for his bail in the event of his arrest in FIR No. 125 of 2010, dated 21.6.2010, registered u/s 376 of the Indian Penal Code.

The petitioner alleges that one Smt. Nisha Kumari wife of Surinder Kumar has falsely implicated him alongwith other co-accused of raping her when she was alone in the house. One of the grounds urged for release him on bail is that the incident is of 10.6.2010, whereas the FIR was registered on 21.6.2010, almost after a period of 12 days. The petitioner again alleges that nothing is to be recovered from him and on this ground alone he has to be released on bail.

I must notice at this juncture that three of the other accused have been sent to judicial custody and their bail petitions have already stand rejected by the learned Additional Sessions Judge, Una, on 30th July, 2010.

It is also urged before me that even the report of the Forensic Science Laboratory, so far as the videography of the entire incident is concerned, does not implicate the petitioner.

I have heard learned Counsel for the parties and have gone through the record of the case.

At this stage, all that I need say is that the delay in lodging FIR cannot be used in a ritualistic manner for doubting the case of the prosecution. See: Dildar Singh Vs. State of Punjab, , State of Chhattisgarh Vs. Derha, This question is to be considered at the time of the trial and if it is found that the period of delay itself leads to deep suspicion the result would be obvious. On the report of the Forensic Science Laboratory, I find that semen has been found on the undergarments of the prosecutrix, but its effect would again be a matter to be considered at the trial stage. The mere fact that videography has not been ascertained at this stage by itself is not sufficient for grant of bail. Section 376(g) of the Indian Penal Code deals with gang rape which is a serious offence. I do not wish to pronounce anything on the merits of the respective contentions otherwise urged as this would be prejudging the case of either party. Needless to say that merely because the custodial interrogation of the petitioner is not required by itself is not sufficient to hold that bail is to be granted. Looking to the seriousness of the offence and the facts and circumstances of the case, this petition is rejected.