ORDER : Bail petitioners, namely Ajay Kumar @ Kala and Bihari Lal, who are behind the bars since 30.9.2021 have approached this court in the instant proceedings filed under S. 439 Cr.P.C, for grant of regular bail in case FIR No. 75 of 2021, dated 18.9.2021, registered at Police Station Lambagaon, District Kanga, Himachal Pradesh under Ss. 376(1), 376(D), 354, 120-B, 201 of IPC, Ss. 6 and 17 of Protection of Children from Sexual Offences Act, Section 181 of Motor Vehicles Act and Sections 3(i)(w)(i)(ii) 3(II)(va) of SC and ST Act. Respondent State has filed status report and SI Kesar Singh has come present with record. Record perused and returned. 2. Careful perusal of the record /status report made available to this court reveals that on 18.9.2021, victim-prosecutrix, aged 17 years (name withheld) lodged a complaint at Police Station Lambagaon, District Kangra, Himachal Pradesh, alleging therein that on 3.9.2021, while she had gone to Balakrupi to attend birthday of granddaughter of her aunt (Tai),bail petitioners sexually assaulted her against her wishes. She further alleged that on 7th/8th 9.2021, when her aunt had gone to earn daily wages and uncle was sleeping under the influence of liquor, her sister-in-law sent two persons to her and they took her to Bohar (room in upper storey of the house) and sexually assaulted her against her wishes. She alleged that when one person was committing sexual assault upon her, another was making her video. She disclosed to the police that on 10.9.2021, she went to Palampur to meet her friend but on 11.9.2021, while she reached Palampur bus stand, she received telephonic call from some person that you reach Kangra, otherwise video made at the residence of her sister-in-law would be made viral. She alleged that after having received aforesaid telephone call, she went to Kangra, from where two persons took her to Jwala Ji and sexually assaulted her against her wishes in a hotel and thereafter dropped her at Nadaun. On the basis of aforesaid complaint made by the victim/prosecutrix, FIR, as detailed hereinabove, came to be lodged against the present bail petitioners. Subsequently, victim-prosecutrix in her statement recorded under S. 164 Cr.P.C alleged that on 6.9.2021, two boys namely, Vivek Chaudhary and Savan came to her aunt’s house and called her outside the window. On the basis of aforesaid complaint made by the victim/prosecutrix, FIR, as detailed hereinabove, came to be lodged against the present bail petitioners. Subsequently, victim-prosecutrix in her statement recorded under S. 164 Cr.P.C alleged that on 6.9.2021, two boys namely, Vivek Chaudhary and Savan came to her aunt’s house and called her outside the window. She alleged that person namely Savan sexually assaulted her in a van and other person, Vivek Chaudhary was standing outside. She alleged that though Vivek Chaudhary did not commit any wrong with her, but hurled abuses and misbehaved with her. In her statement recorded under Section 164 Cr.P.C, she alleged that on 7.9.2021, at 3-4 PM, Kala alias Ajay Kumar alongwith other person came and sexually assaulted her in the Bohar (room in the upper storey of house). She further deposed before the Magistrate that she went to Kangra from where, Rahul took her to Jwalaji in Free India Bus and sexually assaulted her in a hotel. On the basis of aforesaid statement made by the victim/prosecutrix under section 164 Cr.P.C., persons namely Vivek Chaudhary, Savan and Rahul also came to be named in the FIR alongwith the present bail petitioners. All the above accused saves and except present bail petitioners named in the FIR already stands enlarged on bail. Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioners, they have approached this court in the instant proceedings for grant of regular bail. 3. While fairly admitting factum with regard to filing of the Challan in the competent court of law, Mr. Sudhir Bhatnagar, learned Additional Advocate General submits that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve leniency. Mr. Bhatnagar, further submits that there is overwhelming evidence available on record suggestive of the fact that bail petitioners herein taking undue advantage of the innocence and minority of the victim-prosecutrix, sexually assaulted her against her wishes, but even otherwise consent, if any, of the victim-prosecutrix being minor is immaterial and, as such, prayer made on behalf of the bail petitioners for grant of bail deserves outright rejection. 4. 4. Having heard learned counsel for the parties and perused material available on record, this court finds that this Court having taken note of the contradictory statement made by the victim/prosecutrix has already ordered for enlargement of other coaccused on bail during the pendency of the case. Initial statement of the victim-prosecutrix recorded under S.154 Cr.P.C, on the basis of which, FIR came to be registered, is totally contrary to her subsequent statement recorded before learned Magistrate under S. 164 Cr.P.C. While getting her statement recorded under S.154 Cr.P.C, victim/prosecutrix claimed that on 7/8.9.2021, her sister-in-law called two persons in her house and they sexually assaulted her against her wishes in the Bohar, but subsequently in her statement recorded under S. 164 Cr.P.C, she gave altogether different version by stating that two persons, namely Vivek Chaudhary and Savan came to the house of her aunt and called her outside the window and thereafter person namely Savan sexually assaulted her in a van, whereas, another person Vivek Chaudhary kept on standing outside. Though, in the initial statement recorded under Section 154 Cr.P.C., victim/prosecutrix claimed that present bail petitioners sexually assaulted her against her wishes on 6.9.2021, but in her subsequent statement recorded under Section 164 Cr.P.C, she nowhere alleged that on 6.9.2021 she was sexually assaulted against her wishes by the present bail petitioners in Bohar, rather claimed that person namely Savan and Vivek Chaudhary came to the house of her aunt and called her outside the window and thereafter person namely Savan sexually assaulted her in a van. Factum with regard to alleged incident of 6.9.2021, wherein victim/prosecutrix allegedly sexually assaulted by the person namely Savan only came to be recorded in her statement recorded under S. 164 Cr.P.C before Magistrate, wherein victim/prosecutrix made no whisper/mention, if any, with regard to sexual assault, if any, made by bail petitioners on 6.9.2021. If the statement of the victim-prosecutrix recorded under S.164 CrPC is perused, it nowhere suggests that bail petitioners namely Ajay Kumar alias Kala and Bihari Lal had sexually assaulted the victim/prosecutrix against her wishes on 6.9.2021, rather as per statement co-accused namely Savan and Vivek Chaudhary called her outside the window on 6.9.2021 and thereafter person namely Savan sexually assaulted her in a van. 5. 5. Victim-prosecutrix in her statement recorded under S. 154 CrPC, alleged that two persons, who had sexually assaulted her on 7/8.9.2021, in Bohri, had recorded her video but, such fact, if any, never came to be disclosed by her to the Magistrate while making her statement under S. 164 CrPC. Though, in the statement recorded under S.164 CrPC, victim-prosecutrix deposed that the person namely Ajay Kumar alias Kala alongwith other person Bihari Lal had come to her aunt’s house, but she nowhere stated that one of the person, out of two, recorded a video of her. Similarly, version put forth by the victim-prosecutrix with regard to sexual assault committed upon her by the co-accused Rahul in her statement recorded under S.154 CrPC, is totally contrary to her subsequent statement made under S.164 CrPC. In her statement recorded under S. 154 CrPC, victim-prosecutrix stated that on 11.9.2021, while she was going to Palampur bus stand for boarding the bus to her native place, she received a telephonic call asking her to come to Kangra, lest her video recorded at her sister-in-law’s house, shall be made viral. But such fact, if any, never came to be deposed before Magistrate, at the time of recording of her statement under S. 164 CrPC. Victim-prosecutrix in her statement recorded under S.164 CrPC, simply stated that on 11.9.2021, she went to Kangra, from where bail petitioner Rahul took her to Jwala Ji in Free India Bus and thereafter committed sexual assault upon her in a Hotel. 6. Having read statements of the victim-prosecutrix recorded under S. 164 CrPC juxtaposing her statement recorded under Section 154 Cr.P.C., there appears to be force in the submission of learned counsel for the petitioners that version put forth by the victim-prosecutrix is totally contradictory and cannot be relied upon on its face value. 7. Perusal of record made available to this court, further reveals that apart from two statements, as have been discussed herein above, victim-prosecutrix narrated altogether a different story to the child counselor, whose report reveals that victim-prosecutrix disclosed to her that person namely Savan after having clicked her photographs made her sit in Free India Bus bound for Jwala Ji and sent the same to Rahul, who subsequently reached Jwalaji and sexually assaulted her in a hotel. Similarly, victim-prosecutrix disclosed to Councilor that person namely Kala alias Ajay Kumar i.e. present bail petitioner gave her Rs.1,000/-, out of which she paid Rs. 700/- to her aunt and kept Rs. 300/- for herself. 8. Interestingly, in the case at hand, victim-prosecutrix specifically alleged that her sister-in-law sent two persons to her but for some unknown reason, she has not been arrayed as an accused in the FIR. Similarly, it is not understood that how victim-prosecutrix could be raped by the persons named in her statement recorded under S.164 CrPC in a Bohri in the presence of other family members, especially when it has not been stated that at the time of alleged incident, none was present in the house. Call Detail Report collected on record by the Investigating Agency clearly reveals that the victim-prosecutrix had been talking to all the accused namely Vivek Chaudhary, Rahul, Savan and Ajay Kumar for quite long. Transcription of telephone conversation interse one of the bail petitioner and victim/prosecutrix made available to this Court reveals that in past also victim/prosecutrix had been meeting bail petitioners and there is exchange of money also. 9. No doubt, age of the victim-prosecutrix at the time of alleged incident was 16 years, but having noticed her conduct, which can be well gauged from her contradictory statements given to the police, judicial Magistrate and counselor, this court finds it difficult to conclude that the victim-prosecutrix was incapable of understanding the consequences of her being in the company of the persons named by her in the FIR. 10. If version put forth by the victim-prosecutrix in both the statements recorded under Ss. 154 and 164 CrPC, are read in its entirety, it reveals that she had been joining the company of various persons including bail petitioners of her own volition, and her sister-in-law was aware of such fact. Moreover, there is another aspect of the matter that when on 6.9.2021, victim-prosecutrix was sexually assaulted against her wishes by co-accused Savan, it is not understood that why she again joined the company of another two persons namely, Ajay Kumar alias Kala and Bihari Lal i.e. present bail petitioners herein on 7.8.2021 that too in her own house, in the presence of her sister-in-law. 11. First incident allegedly happened on 6.9.2021 and thereafter second and third incident happened on 7th and 11th September, 2021 respectively. 11. First incident allegedly happened on 6.9.2021 and thereafter second and third incident happened on 7th and 11th September, 2021 respectively. As per own case of the victim-prosecutrix, she had been travelling from Balakrupi to Palampur and Palampur to Kangra and Kangra to Jwala Ji between 6.9.2021 to 11.9.2021 but yet she did not find any chance/place and time to lodge complaint against the persons, who allegedly sexually assaulted against her wishes. 12. Leaving everything aside, medical evidence adduced on record, does not support the prosecution story and as such, this court sees no reason to let the bail petitioners incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from them. Since alleged incidents are of three different dates and in all the three incidents, persons are different, it is not understood how Section 376-D and 120-B of IPC could be invoked in the case at hand. Though, case at hand is to be considered and decided by the learned trial Court on the basis of totality of evidence collected on record by the investigating agency, but keeping in view the aforesaid glaring aspect of the matter, there appears to be no reason to curtail the freedom of the bail petitioners for indefinite period during the trial. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioners being enlarged on bail, they may flee from justice, can be best met by putting the bail petitioners to stringent conditions. 13. 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. 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. 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. 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 ReInhuman Conditions in 1382 Prisons 14. The Hon’ble Apex Court in Sanjay Chandra versus 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. 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.” 15. 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. 16. 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. 16. The Apex Court in Prasanta Kumar Sarkar versus 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. 17. In view of above, bail petitioners have carved out a case for themselves. Consequently, present petitions are allowed and bail petitioners are ordered to be enlarged on bail, subject to their furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety each in the like amount, to the satisfaction of the learned trial Court, besides the following conditions: (a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) They 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) They shall not leave the territory of India without the prior permission of the Court. 18. It is clarified that if the petitioners misuse the liberty or violate any of the condition imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 19. 18. It is clarified that if the petitioners misuse the liberty or violate any of the condition imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 19. 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 these applications alone. The petitions stand accordingly disposed of. 20. The petitioners are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order form the High Court website or otherwise. Copy dasti.