ORDER : Bail petitioner namely Dumnu Ram, who is behind the bars since 4.9.2020, has approached this Court in the instant proceedings filed under Section 439 Cr.PC., for grant of regular bail in case FIR 0035, dated 13.2.2016, registered at PS Sundernagar, District Mandi, Himachal Pradesh, under Sections 376 and 452 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act. 2. Pursuant to order dated 13.9.2021, passed by this Court, Respondent-State has filed the status report. ASI Rajinder Singh, I.O. P.S. Sundernagar, District Mandi, H.P., is also present with records. Record perused and returned. Close scrutiny of record/status report reveals that on 13.2.2016, victim-prosecutrix presented one complaint at Police Station Sundernagar, alleging therein that on 12.2.2016, she alongwith her father had gone to Slapar Hospital for getting her eye checked. At 2:00pm, her both sisters also met her and thereafter, their father after having purchased some articles asked them to return to their house. She alleged that after some time, she asked her two sisters to come slowly, whereas she went fast and when she reached Dhaarli Village, two boys were sitting there. She alleged that those two boys after having seen her, started moving ahead of her and when she reached home, she directly went to the kitchen, where the bail petitioner, at 4:30 pm, forcibly entered in the kitchen and made an attempt to outrage her modesty. She alleged that the above named person sexually assaulted her against her wishes and while he was wearing his cloths, her mother reached there and slapped both of them. She disclosed that present bail petitioner fled away from the spot and thereafter, entire incident was disclosed to her father when he came back home. In the aforesaid background, FIR as detailed herein above, came to be lodged against the present bail petitioner. Though, after lodging of FIR, bail petitioner remained absconded for almost four years, but subsequently, surrendered on 4.9.2020 and since then, he is behind bars. Since challan stands filed in the competent court of law and statements of victim-prosecutrix and her mother stand recorded, petitioner has approached this Court in the instant proceedings for grant of regular bail 3. Mr. Though, after lodging of FIR, bail petitioner remained absconded for almost four years, but subsequently, surrendered on 4.9.2020 and since then, he is behind bars. Since challan stands filed in the competent court of law and statements of victim-prosecutrix and her mother stand recorded, petitioner has approached this Court in the instant proceedings for grant of regular bail 3. Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting factum with regard to filing of challan in the competent court of law and recording of the statements of victim-prosecutrix and as well as her mother, submits that keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency. Mr. Bhatnagar, submits that though victim-prosecutrix and her mother have resiled from their initial statements given to the police, but there is overwhelming evidence adduced on record by the investigating agency, suggestive of the fact that bail petitioner taking undue advantage of innocence and minority of the victim-prosecutrix sexually assaulted her against her wishes. He further states that otherwise also, consent, if any, of victim-prosecutrix is immaterial and as such, bail petitioner does not deserve to be enlarged on bail. Lastly, Mr. Bhatnagar, submits that since the petitioner has absconded for more than four years, it may not be in the interest of justice to enlarge him on bail at this stage, who in the event of his being enlarged on bail may not only flee from justice, but may also temper with the prosecution evidence and as such, prayer for grant of bail on his behalf may be rejected. 4. Having heard learned counsel for the parties and perused material available on this record, this Court finds that on 12.2.2016, victim-prosecutrix, who, admittedly, at that time, was minor, had gone to hospital with her father. She after having checked up her eye though was coming back to her house alongwith her two sisters, but as per her own statement, she asked her sisters to come slowly, whereafter she of her own, reached the house ahead of her both sisters, where she was allegedly sexually assaulted by the bail petitioner against her wishes. She after having checked up her eye though was coming back to her house alongwith her two sisters, but as per her own statement, she asked her sisters to come slowly, whereafter she of her own, reached the house ahead of her both sisters, where she was allegedly sexually assaulted by the bail petitioner against her wishes. Though aforesaid version putforth by the victim-prosecutrix, if read in its entirety, suggests that victim-prosecutrix had prior acquaintance with the present bail petitioner, who after having seen her near Village Dhaarli, started moving ahead of her, but since consent, if any, of minor is immaterial, prior acquaintance and consent, if any, given by the victim-prosecutrix is of no relevance. However, having taken note of the fact that statements of victim-prosecutrix as well as her mother stand recorded in the court, wherein they both have specifically denied the allegation of rape leveled against the petitioner, prayer made on behalf of the bail petitioner deserves to be considered. If the statement of victim-prosecutrix recorded before the court below is perused in its entirety, it suggests that though at the time of the alleged incident, bail petitioner was present in the room, where allegedly, incident took place, but he did not commit any forcible sexual assault on the victim-prosecutrix. Victim-prosecutrix in her cross-examination has categorically denied factum with regard to her having subjected to forcible sexual intercourse by the accused. Though aforesaid version putforth by the victim-prosecutrix is totally contrary to her initial statement given to the police under Section 154 Cr.PC as well as her subsequent statement recorded by the Magistrate under Section 164 Cr.PC, but aforesaid version putforth by her in cross-examination, is fully corroborated by the version putforth by her mother, wherein she while specifically denying the factum with regard to forcible sexual intercourse by the petitioner deposed that she had gone to collect the firewood and when she came to know from a lady that accused was sitting in one of the rooms with child victim, she came back and saw them sitting together and gave beating to both of them. She deposed that accused ran away from the spot. Cross-examination conducted on this witness reveals that some lady namely Nirmala had told her that accused was sitting with the child victim inside her house. She deposed that accused had removed his trouser and was masturbating himself. She deposed that accused ran away from the spot. Cross-examination conducted on this witness reveals that some lady namely Nirmala had told her that accused was sitting with the child victim inside her house. She deposed that accused had removed his trouser and was masturbating himself. She also admitted in her cross-examination that her daughter i.e. victim-prosecutrix had told her that accused had not committed any sexual assault upon her. Medical evidence adduced on record, nowhere reveals that there are injuries, if any, on the internal or external part of the victim-prosecutrix and as such, mere reliance if any, on the FSL report may not be sufficient to conclude guilt of the accused at this stage. 5. Leaving everything aside, this Court finds that statement of material prosecution witnesses i.e. victim-prosecutrix and her mother, stand recorded and as such, no fruitful purpose would be served by keeping the present bail petitioner, who is 26 years old young boy, behind bars for an indefinite period during trial, especially when, he has already suffered for more than a year in jail. Though case at hand is to decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but having noticed aforesaid glaring aspects of the matter, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when guilt, if any of him is yet to be proved in accordance with law. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time, guilt of his/her is not proved in accordance with law. Apprehension expressed by the 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 the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 6. 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, 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. 7. 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 unconvicted 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 unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 8. In Manoranjana Sinh Alias Gupta Vs. In Manoranjana Sinh Alias Gupta Vs. CBI, 2017 (5) SCC 218 , The Hon’ble Apex Court has held as under:- “This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 9. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 9. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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. 10. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731 , relevant para whereof has been reproduced herein below:- “11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 ). 11. 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. 11. 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. 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. 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. 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 Re-Inhuman Conditions in 1382 Prisons. 12. 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 Re-Inhuman Conditions in 1382 Prisons. 12. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 him/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. 13. It is clarified that if the petitioner misuses the 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. 14. Any observations made hereinabove 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. The petition stands accordingly disposed of.