Sita Ram vs State Of Rajasthan (2025:Rj-Jd:940) on 7 January, 2025

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Rajasthan High Court – Jodhpur

Sita Ram vs State Of Rajasthan (2025:Rj-Jd:940) on 7 January, 2025

Author: Dinesh Mehta

Bench: Dinesh Mehta

[2025:RJ-JD:940]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 11216/2024

Sita Ram S/o Shri Om Prakash, Aged About 19 Years, R/o Village
Mitasar, Tehsil Sardarsahar, District Churu. (At Present Lodged In
Central Jail Bikaner)

—-Petitioner
Versus

1. State Of Rajasthan, Through Pp

2. Ritu Gigawat D/o Heeraram, Aged About 20 Years, R/o
Fatipura, Bhutto Ka Bas, Bikaner.

—-Respondents

For Petitioner(s) : Mr. Pradeep Shah with Mr. Abhimanyu
Singh Kotwad
For Respondent(s) : Mr. Shrawan Singh Rathore, PP
Mr. Vikram Singh Choudhary

JUSTICE DINESH MEHTA

Order

07/01/2025

1. The present third bail application has been filed by the

applicant under Section 439 of the Cr.P.C. seeking regular bail in

connection with FIR No.363/2023 registered at Police Station

Sadar, District Bikaner for the offences under sections 363, 366,

376, 376(2)(n) of Indian Penal Code, 1860, sections 67 and 67-A

of Information and Technology Act, 2000 and sections 3/4, 5L/6 of

the Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as ‘POCSO Act‘).

2. The first bail application being S.B. Criminal Misc. Bail

Application No.14547/2023 filed by applicant was dismissed as not

pressed by order dated 19.01.2024 and the second bail

application being S.B. Criminal Misc. Bail Application

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No.4448/2024 was dismissed as withdrawn by order dated

29.05.2024.

3. Mr. Shah, learned counsel for the applicant submitted that

after dismissal of second bail application of the applicant, the

application filed under sections 91 and 311 of Code of Criminal

Procedure, 1973 before the trial Court was allowed and the

documents namely scholar register, date of birth certificate so also

admission form of the prosecutrix were taken on record and

mother of the prosecutrix (PW-1) was called in the witness box.

4. He argued that so far as those documents are concerned,

PW-1 has admitted that the admission form bears her signatures.

5. Inviting Court’s attention towards the documents-Exhibit-

D2A, D3A and D4A, learned counsel pointed out that date of birth

of the prosecutrix in the birth certificate has been shown to be

27.09.2004 and argued that date of birth of the prosecutrix is not

22.09.2005, as has been shown in the Secondary Examination

mark-sheet.

6. Inviting Court’s attention towards the provisions contained in

section 94 of the Juvenile Justice (Care and Protection of Children)

Act, 2015, learned counsel argued that entries mentioned in the

scholar register should be given precedence over the Secondary

School Examination Certificate. In sum and substance, Mr. Shah’s

contention has been that at the time of the incidence, the

prosecutrix was major and therefore, the accused cannot be

prosecuted under the provisions of POCSO Act.

7. Having said so, learned counsel invited Court’s attention

towards the statement and cross-examination of the prosecutrix

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and argued that it was a case of consensual physical relationship

which has been given a colour of forceful sexual assault. He also

argued that the FIR came to be lodged after two months of the

alleged incidence, perhaps because the photographs which the

applicant was having in his mobile phone got viral.

8. Learned counsel further submitted that the prosecutrix

initially inculpated the applicant so also another person

Champalal, however, later on, she changed her version in order to

favour said Champalal and ensure his exculpation from the

charges and argued that conduct of the prosecutrix, in particular,

raises a doubt about veracity of her statement.

9. Learned Public Prosecutor vehemently opposed the bail

application and submitted that the prosecutrix has so far

maintained the allegation of sexual assault against the applicant

and thus, he cannot be given any advantage even if, for a

moment, it is presumed that the prosecutrix was major on the

date of incident.

10. Mr. Choudhary, learned counsel appearing for the

complainant vehemently opposed the bail application and

submitted that since the prosecutrix and the applicant belong to

same sub-caste, the prosecutrix believed him and readily went to

his room, completely unmindful of the fact that the applicant

might betray her faith.

11. He argued that the testimony of the prosecutrix so far as

forceful sexual assault under the threat of knife is concerned, has

remained unbreached and therefore, no indulgence be granted to

the applicant.

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12. It was further argued by Mr. Choudhary that applicant has

even made photographs and videos of the prosecutrix viral and

such an act of him cannot be taken lightly or ignored.

13. Heard learned counsel for the parties and perused the

record.

14. Upon perusal of the supplementary statement of the mother

of prosecutrix (PW-1) recorded on 19.12.2024; her cross-

examination and confrontation with the documents (Exhibit-D2A,

D3A and D4A), this Court is of the prima-facie view that the date

of birth of the prosecutrix is a serious question which would be

required to be determined by the trial Court, inasmuch as both the

scholar register and date of birth certificate of the prosecutrix

reflect her date of birth as 27.09.2004 as against the Secondary

School Certificate which shows her date of birth to be 22.09.2005.

15. Be that as it may. The applicant has been able to make out a

prima-facie case about correctness of the age of prosecutrix and

consequent charges under the provisions of POCSO Act against

him.

16. Adverting to the case of sexual assault, this Court is of the

view that the fact that FIR came to be lodged after about two

months of the date of the incident so also the fact that the

applicant had certain objectionable photographs and videos with

the prosecutrix in his mobile phone, suggests otherwise. That

apart, the delay in lodging the FIR is fatal to the prosection case,

more particularly when the mother of the prosecutrix (PW-1) is a

police constable – delay of two months caused in lodging the FIR

cannot be given a go bye.

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17. In view of what has been noticed above, this Court is

persuaded to enlarge the applicant on bail, who is behind the bars

since 22.08.2023.

18. The present third bail application filed under Section 439

Cr.P.C. is allowed. The applicant Sita Ram S/o Shri Om Prakash

arrested in connection with the FIR No. 363/2023 registered at

Police Station Sadar, District Bikaner shall be released on bail on

his furnishing personal bond in the sum of Rs.50,000/- and two

sureties of Rs.25,000/- each to the satisfaction of the trial Court.

19. Applicant shall be required to appear before that Court on all

dates of hearing and as and when called upon to do so.

20. Needless to mention that the above observations made by

this Court are on the basis of material so far produced before the

Court. These are only prima-facie observations and the same shall

however, not come in the way of the trial Court to take

independent view of the matter, based on ocular and oral

evidence, while finally deciding the case.

(DINESH MEHTA),J
141-raksha/-

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