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No.4448/2024 was dismissed as withdrawn by order dated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