Omaram vs State Of Rajasthan And Others

Kuldeep Mathur, J

This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.75/2021, registered at Police Station Luni, District Jodhpur City West, for the offences under Sections 341, 323, 326 and 376(2)(f), 376(2)(n), 376 (3) IPC read with Sections 3(2)/4, 5(n)/6, 5(l)/6 of POCSO Act, 2012.

Heard learned counsel for the petitioner and learned Public Prosecutor as well as the learned counsel for the complainant. Perused the material available on record.

Learned counsel for the petitioner vehemently contended that the petitioner has been falsely implicated in the present case.

Learned counsel submitted that the victim “N” submitted a written report to the SHO P.S. Luni, District Jodhpur alleging inter-alia that on 04.04.2021, her father i.e. accused-petitioner had bitten off her nose. In the written report, victim -”N” also disclosed that her father had taken a divorce with her mother in the year 2011 and she is being looked after by her grand parents. On the basis of the said written report, the FIR No.0075/2021 was lodged against the present petitioner for the offences under Section 323 and 341 IPC. The police thereafter started investigation in the matter.

Learned counsel for the petitioner submitted that while the police was investigating the matter, a complaint was made by one Organization namely “Meri Bhavnayen Seva Sansthan” alleging that Victim- "N" was subjected to sexual assault- rape by the present petitioner. Thereupon, the police after conducting investigation in the matter submitted the challlan against the present petitioner before competent criminal court on 09.06.2021, for the offences under 341, 323, 326 and 376(2)(f), 376(2)(n), 376 (3) IPC read with Sections 3(2)/4, 5(n)/6, 5(l)/6 of POCSO Act, 2012 Drawing attention of the Court towards the FIR, challan papers and statements of the Victim- "N" and other material witnesses of the case recorded under various Sections of Cr.P.C., learned counsel contended that initially in the FIR and statements recorded under Section 161 Cr.P.C., only the allegation of bitting off of the nose of the Victim- "N" was levelled against the present petitioner. However, later on, with an intention to rope the petitioner in a false criminal case of more serious offences an exaggerated version of the incident was narrated. Learned counsel for the petitioner also contended that it is highly improbable that at the time of lodging the FIR and initial statements under 161 Cr.P.C., Victim- "N" would not disclose the factum of she being subjected to repeated sexual assault by her own biological father.

Learned counsel for the petitioner submitted that the statements of the victim recorded under Section 164 Cr.P.C. and the statements recorded before competent criminal court as PW.1 indicate that she was subjected to the alleged act of sexual assault-rape by the petitioner about two years prior to the date of lodging of the FIR. However, no FIR or complaint was ever lodged by her in this regard and the delay in bringing up the matter has not been satisfactorily explained by the victim.

Learned counsel further submitted that the Grandmother of the Victim- "N" namely Smt. Suvti Devi also in her statements recorded under Section 161 Cr.P.C., initially has not levelled any allegation of victim being subjected to sexual assault by the present petitioner. However, in titimba bayan and during Court statements Smt. Suvti Devi (PW.7) as well as the Grandfather of the victim namely Chaturaram (PW.2) have alleged that the present petitioner sexually assaulted the Victim- "N". Learned counsel for the petitioner submitted that the behavior of these witnesses in the present case is highly unnatural and brings the entire prosecution case under the shadow of doubt.

Learned counsel for the petitioner contended that owing to existing land disputes between the family members of the petitioner, the petitioner has been implicated in the false criminal case. The Victim- "N" who is admittedly living with her grandparents has been tutored by them to depose against her own biological father.

Attention of the Court was also drawn towards the facts of the case No.84/2021 lodged by Police under Section 306 IPC wherein one boy namely Ramnivas committed suicide being perturbed by the allegations of sexual assault-rape levelled against him by the Victim- "N".

Learned counsel for the petitioners contended that the complicity of the accused-petitioner in commission of the offences under Sections 323, 326,and 341 of the IPC has also not been sufficiently proved in the present case. To substantiate this argument, learned counsel drew attention of the Court towards the statements of Dr. Govind Ram Dahiya (PW.3) who during his cross-examination before competent criminal court, has specifically deposed that the injury examined by him on the nose of the Victim- "N" is a laceration which is blunt in nature and no teeth marks have been found on the nose. Learned counsel submitted that had the tip of the nose of the Victim- "N" being bitten by the present petitioner, the same would have got teeth marks. According to the learned counsel, the statements of Dr. Govind Ram Dahiya (PW.3) are sufficient to establish that the victim as well as the material prosecution witnesses have not disclosed the entire matter truthfully before the Investigating Agency and the competent criminal court.

Lastly, learned counsel for the petitioner submitted that the petitioner is in judicial custody and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.

Per Contra, learned Public Prosecutor has opposed the bail application.

Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the Victim- "N" initially in the written report dated 04.04.2021 has not levelled any allegation of sexual assault-rape against the present petitioner; Grandmother and Grandfather of the Victim-"N" also in their initial statements did not level any allegation of victim being subjected to forcible sexual assault- rape by the present petitioner. Though, later on, serious allegation of sexual assault-rape has been levelled against the present petitioner but there is no material available on record, justifying the delay of about two years in reporting the incident of victim being subjected to sexual assault- rape by the present petitioner.

This Court also prima facie finds that in the written report dated 04.04.2021, the allegation against the petitioner is of bitting the nose of the Victim- "N" but Dr. Govind Ram Dahiya (PW.3) during cross-examination before the competent criminal court stated that during medical examination of the Victim- "N" no teeth marks were found/recorded by him.

This Court also prima facie finds that the petitioner is in judicial custody since last more than two years and eight months and till date out of 20 cited prosecution witnesses, statements of only 7 cited prosecution witnesses have been recorded. The trial against the petitioner has therefore, not even reached to the half way mark. There is nothing on record to indicate that the delay in trial is attributable to the present petitioner.

This Court also prima facie finds that the statements of the material prosecution witnesses have already been recorded before competent criminal court and the prosecution has not shown any apprehension of petitioner influencing the remaining prosecution witnesses in case, he has enlarged on bail.

Thus, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.

Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Omaram S/o Shri Chutraram arrested in connection with F.I.R. No.75/2021, registered at Police Station Luni, District Jodhpur City West, shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.