BHUPESH BROGI Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in F.I.R. No.102/2007 dated 30.8.2007 under Section 376 I.P.C. registered at Police Station, Jhakri.

(2.) THE facts, in brief, are that on 29.8.2007 at about 11 p.m. petitioner, along with Jai Chand, Padam Dass and Pawan Laktu went to the house of prosecutrix and entered in the verahdah of her house by unbolting the door. Jai Chand asked the prosecutrix to give them glasses as they want to take liquor. The prosecutrix objected but on the insistence of Jai Chand, who told her that they would go after taking liquor, she brought the glasses and was cleaning them in the verandah. In the meantime, petitioner caught hold of her from behind from both arms. The prosecutrix tried to free herself and in this process she broke her two glass bangles which even injured her wrist. Thereafter, petitioner untied the string of her Salwar and raped her. The prosecutrix attempted to raise cries but petitioner told her that he knew that her husband was not there. Her mother in law had already slept, Pawan, Jai Chand and Padam were talking loudly inside the room under the influence of liquor. The petitioner raped her finding her alone along with her small children. Thereafter, Pawan Laktu, Padam Dass and petitioner left the place but Jai Chand slept in the house of prosecutrix. The mother in law of the prosecutrix is blind and could not walk.

(3.) THE learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in the case. The prosecution story is absolutely false. Jai Chand is a cousin of prosecutrix's husband in close relation. It is not the case of the prosecution that the petitioner and his other friends came in the house of the prosecutrix after taking liquor from outside or they took liquor in the house of the prosecutrix. There is no explanation how Jai Chand, close relation of prosecutrix's husband, remained silent even after the alleged rape of prosecutrix by the petitioner, even though it is the case of the prosecution that Jai Chand slept in the house of prosecutrix and others left her house after alleged incident. There is no injury on the person of prosecutrix or on the person of petitioner except broken bangle injury on the wrist of prosecutrix, which is explainable. The learned counsel for the petitioner has submitted that the learned Sessions Judge has erred in dismissing the application of the petitioner on the ground that the petitioner is instrumental in procuring affidavit of prosecutrix exonerating the petitioner. He has submitted that the petitioner is in jail and he could not be blamed for the affidavit which has been allegedly given by the prosecutrix. The learned Additional Advocate General has opposed the bail application.