Subhash vs State Of Rajasthan

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

The petitioner has been arrested in FIR No. 133/2019 of Police Station, Hindumalkot, District Sriganganagar for the offences punishable under Sections 450, 458, 376(2)(I)(N) IPC and Section 5(L)/6, 3/4 POCSO Act 2012. He has preferred this bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that the allegation against the petitioner of sexual assault is false. It is submitted that from the 'Naksha-Mauka' prepared by the police during the course of investigation, it is clear that at the time of the alleged incident, the prosecutrix was sleeping with her five family members and it is difficult to believe that in the presence of those family members of the prosecutrix, the petitioner had sexually assaulted her. It is submitted that the prosecutrix in her police statements has stated that she consumed pesticide on account of harassment and sexually assault by the petitioner but the doctor in his statements has clearly stated that he had not given treatment to the prosecutrix for poisoning and but treated her for something else. It is also submitted that earlier also a complaint was filed against the petitioner at the instance of prosecutrix, however, later on, the prosecutrix has changed her version and the police filed negative final report in the said complaint. It is submitted that taking into consideration the overall facts and circumstances of the case, the petitioner is entitled to be enlarged on bail.

Per contra, learned Public Prosecutor as well as learned counsel for the complainant have vehemently opposed the bail application and argued that the age of the prosecutrix is around 15 years and 11 months and earlier also, she has filed complaint regarding sexual assault against the petitioner but on account of intervention by the villagers and relatives of the prosecutrix, the said complaint was withdrawn. It is submitted that as the petitioner succeeded in getting the complaint of sexual assault against him withdrawn, he again sexually assaulted the prosecutrix on 07.05.2019 and on account of harassment by the petitioner, the prosecutrix consumed poison and was admitted in the hospital. It is further submitted that from the statements of the prosecutrix and other witnesses recorded during the course of investigation, it is clear that the petitioner is guilty of commission of rape upon a minor and therefore, he is not entitled to be enlarged on bail.

Having regard to the totality of the facts and circumstances of the case and looking to the nature of accusation and gravity of the offence and after going through the charge-sheet, without expressing any opinion on the merits of the case, I am not inclined to grant bail under Section 439 Cr.P.C. to the petitioner.

Accordingly, the bail application preferred by the petitioner under Section 439 Cr.P.C. is rejected.