Rajasthan High Court - Jaipur
Bhagwan Sahay And Anr vs State Of Rajasthan Through Pp on 23 January, 2014
In the High Court of Judicature for Rajasthan at Jaipur Bench Jaipur O R D E R S.B. Criminal Miscellaneous Bail Application No.8665/2013 Bhagwan Sahay and another Vs. State Date of Order ::: 23.01.2014 Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia Mr. Madhav Mitra & Mr. Shovit Jhajharia, Counsel for the petitioners Mr. Amit Poonia, Public Prosecutor for the State
Mr. V.S. Shekhawat, Counsel for the complainant *** Instant application has been filed under Section 439 Cr.P.C. for grant of a regular bail to the petitioners in a case arising out of F.I.R. No.168/2011, registered at Police Station Chandwaji, Jaipur Rural, for offences punishable under Sections 324, 323 and 376 (2) (g) I.P.C.
In the present case, petitioner No.1, namely Bhagwan Sahay, is a neighbour of the complainant-prosecutrix, whereas petitioner No.2, namely Raju @ Rajendra Kumar, is a brother-in-law [devar] of the complainant/prosecutrix.
Mr. Madhav Mitra, the learned counsel appearing for the petitioners, has submitted that the investigation without any rhyme or reason was kept pending against the petitioners under Section 173 (8) Cr.P.C.
It is further submitted by the learned counsel that the husband of the prosecutrix/complainant was tried and acquitted. Later-on, Investigating Agency had submitted charge-sheet against the petitioners for offences under Sections 498-A, 323/324 and 376 (2) (g) I.P.C.
While dictating order, Mr. Mitra, learned counsel, has interrupted and submitted that earlier investigation was not kept pending under Section 376 (2) (g) I.P.C.
Progress report was called for from the trial Court.
The trial Court, in its progress-report, has submitted that the statement of prosecutrix [name withheld to protect her identity] has been recorded in camera on 23.12.2013 and her further cross-examination was deferred for 07.01.2014.
Counsel appearing for the petitioners has placed on record the statement of the prosecutrix recorded by the trial Court.
In examination-in-chief, prosecutrix has stated that one Bhagwan Sahay had caught hold of her hand, whereas Pappu and Raju @ Rajendra Kumar had committed wrong act with her. Bhagwan Sahay had caused her injury. To be precise, in vernacular she stated that mere sath ganda kaam kiya.
Counsel appearing for the petitioners has submitted that examination-in-chief of prosecutrix was deferred on the request made by the learned Public Prosecutor for the State; and later-on, prosecutrix has not levelled allegation of rape against Raju @ Rajendra Kumar.
Counsel appearing for the petitioners has submitted that this Court should rely upon second part of examination-in-chief, wherein the learned Public Prosecutor for the State having declared the prosecutrix as hostile had cross-examined her.
After hearing the learned counsel for the parties, this Court is of the view that at the stage of bail, this Court should refrain to threadbare examine the statement of the prosecutrix as upon which part of the testimony, the Court has to rely, is a prerogative of the trial Court.
In the present bail application, this Court shall not appreciate the testimony of the prosecutrix, lest it may not prejudice, the trial Court .
However, this Court cannot become oblivious of the fact that on the very first day, she had stated that accused had performed gandakaam.
However, so far as the petitioner No.1, namely Bhagwan Sahay, neighbour is concerned, there is only an allegation of causing simple injuries falling within the ambit of Section 323 I.P.C.
Consequently, the present application is accepted, qua the petitioner No.1, namely Bhagwan Sahay, and he is ordered to be released on bail, during pendency of the trial to the satisfaction of the trial Court.
However, considering allegation of rape against the petitioner No.2, namely Raju @ Rajendra Kumar, the present application is, hereby, rejected, qua him.
[ Kanwaljit Singh Ahluwalia ] J.
Ashok/7 Certificate - All corrections have been incorporated in the judgment/order being emailed.
Ashok Kumar Songara/P.A.cum J.W