JUDGMENT Sandeep Sharma, J. (Oral) - Bail petitioner namely, Bittoo Ram, who is behind the bars since 11.10.2018, has approached this Court in the instant proceedings filed under section 439 of the Code of Criminal Procedure, 1973 praying therein for grant of regular bail in case FIR No.147 of 2018, dated 26.9.2018, under Section 452, 376 and 506 of IPC, registered at police Station, Jawali, District Kangra Himachal Pradesh. 2. Sequel to order dated 28.5.2019, ASI Chaman Lal has come present alongwith the record. Mr. Ashwani Sharma, learned Additional 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. Close scrutiny of the record/status report, reveals that on 26th September, 2018 complainant (hereinafter referred to as the ''prosecutrix'') got her statement recorded under Section 154 Cr.P.C., 1973 with police Station, Karsog, District Mandi, Himachal Pradesh, stating therein that for the last 10 to 12 days she has been residing as a guest in the house of her mother. On 24th September, 2018 at 7:30 PM, bail petitioner, who happened to be his god brother came to the house under the influence of liquor and started giving beatings to her mother and other family members. She also alleged that bail petitioner also broke the door of the house and thereafter when all the family members went to sleep, he forcibly after breaking the door of her room, sexually assaulted her 34 times. She further stated that in the morning my relatives tried to apprehend him, but he ran away. On the basis of aforesaid statement, formal FIR, as detailed herein-above, came to be lodged against the bail petitioner on 26.9.2018. After completion of the investigation, police presented the challan in the competent court of law, but evidence is yet to commence. 4. Mr. Vinay Sharma, learned counsel representing the bail petitioner while referring to the record/status report, strenuously argued that no case much less under Section 376 of IPC is made out against the bail petitioner because story put forth by the prosecution is highly improbable and cannot be believed. 4. Mr. Vinay Sharma, learned counsel representing the bail petitioner while referring to the record/status report, strenuously argued that no case much less under Section 376 of IPC is made out against the bail petitioner because story put forth by the prosecution is highly improbable and cannot be believed. He further contended that as per own statement of the prosecutrix, bail petitioner prior to entering her room had given beatings to the other family members and as such, by no stretch of imagination, it can be believed that subsequently bail petitioner could succeed in entering the room of the prosecutrix, who at that time was residing in the house owned by her mother. He further contended that report of RFSL reveals that no semen was detected and as such, bail petitioner, who has been falsely implicated in the case deserves to be enlarged on bail. 5. Mr. Ashwani Sharma, learned Additional Advocate General while opposing the prayer having been made on behalf of the bail petitioner for grant of bail, forcefully contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency. Mr. Sharma, further contended that there is ample evidence on record to demonstrate that prior to the alleged incident, bail petitioner under the influence of liquor had entered in the matrimonial house of the prosecutrix, who was residing there for last 1015 days. He further contended that there is concrete evidence suggestive of the fact that bail petitioner after having committed forcible intercourse with the prosecutrix left the room of the prosecutrix in the wee hours. Mr. Sharma, further contended that no doubt investigation in the case is complete, but in the event of petitioner''s being enlarged on bail, there is every likelihood of his fleeing from justice because in past also he remained absconded for 15 days. 6. Having heard learned counsel representing the parties and perused the material available on record, it is apparent that bail petitioner and the prosecutrix had prior acquaintance because as per own statement of the prosecutrix bail petitioner had become his god brother. 6. Having heard learned counsel representing the parties and perused the material available on record, it is apparent that bail petitioner and the prosecutrix had prior acquaintance because as per own statement of the prosecutrix bail petitioner had become his god brother. It is not understood that once bail petitioner after the alleged quarrel of bail petitioner with the prosecutrix and other family members had left the house of the prosecutrix mother, where was the occasion for the prosecutrix or other family members to again allow bail petitioner to enter their house. Story put forth by the prosecutrix that bail petitioner entered her house after breaking the door appears to be highly improbable/unbelievable because it is not the case of the prosecutrix that her room was far away from the other rooms where admittedly other family members were sleeping. There is no plausible explanation available on record that what prevented prosecutrix from raising hue and cry, while she was being subjected to forcible sexual intercourse that too in her own house where admittedly other family members were also sleeping. Apart from above, medical evidence adduced on record by investigating agency does not support the version of prosecutrix. 7. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but this Court having perused the material available on record and taken note of the fact that bail petitioner is behind the bars for the last nine months, sees no reason to keep him behind the bars for an indefinite period, especially, when his guilt is yet to be proved in accordance with law. 8. Hon''ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence. Apprehension expressed by learned Additional Advocate General that in the event of petitioner''s being enlarged on bail, he may flee from justice, can be best met by putting bail petitioner to stringent conditions, as has been fairly stated by learned counsel representing the bail petitioner. 9. Recently, the Hon''ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon''ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon''ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: 2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting section 436A in the Code of Criminal Procedure, 1973. 5. An equally soft approach to incarceration has been taken by Parliament by inserting section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons 10. The Hon''ble Apex Court in Sanjay Chandra vs. Central Bureau of Investigation (2012)1 SCC 49 ; held as under: "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the propose of giving him a taste of imprisonment as a lesson." 11. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 12. The Hon''ble Apex Court in Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 13. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/ (Rs. 13. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/ (Rs. One lakh) with one surety in the like amount each, to the satisfaction of the learned trial Court, with following conditions: a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court. 14. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 15. Any observations made herein-above shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. 16. The bail petition stands disposed of accordingly. 17. Copy dasti.