Rajasthan High Court - Jaipur
Manoj Kumar @ Changu vs State Of Rajasthan Through Pp on 5 September, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Miscellaneous II Bail No. 410 / 2017
Manoj Kumar @ Changu, Son of Shri Khayali Ram, by Caste
Meghwal, Aged About 24 Years, R/o Village Padewa, Tehsil Khetri,
Police Station Khetri, District Jhunjhunu (Raj.) (presently Confined
At Central Jail Jhunjhunu)
----Petitioner
Versus
State of Rajasthan Through P.P.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Ratan Kaushik
For State : Mr. S.K. Saini, Public Prosecutor
_____________________________________________________ HON'BLE MR. JUSTICE BANWARI LAL SHARMA Order 05/09/2017 The present Misc bail application under section 439 Cr.P.C. is preferred by the Accused/ petitioner in the matter of FIR No. 547/2013 registered at Police Station Khetri, District Jhunjhunu for offences punishable under Sections 363, 366-A, 376 of IPC and Section 4 of POCSO Act, 2012.
Learned counsel for the petitioner submits that petitioner is implicated falsely in this matter, he is in custody since long. First bail application of present petitioner was dismissed as withdrawn. When petitioner is in judicial custody, prosecutrix sent a letter through registered post to petitioner wherein she clearly stated that she gave statement before the Trial Court during trial of the Sessions case in pressure of her parents. Before recording her statement, she was threatened by her parents to give (2 of 3) [CRLMB-410/2017] statement according to their wish and to implicate petitioner in false rape case, therefore her statement recorded during trial cannot be read against the present petitioner. He submits that during cross examination trial Court was requested to get examine the letter from hand writing expert at FSL but learned Trial Court rejected the application, that order was challenged before this Court and co-ordinate Bench of this Court in S.B. Criminal Misc. Petition No. 891/2017 which was allowed vide order dated 17.02.2017. He submits that there are material contradiction in Police statement recorded under Section 161 and statement under Section 164 Cr.P.C. and Court statement of prosecutrix. He submits that as per letter of prosecutrix the Date of Birth of prosecutrix is 25.06.1993 but her father wrongly get it recorded as 25.06.1997. He submits that there is no evidence for taking away the prosecutrix from the custody of her legal guardian, rather she clearly stated that she herself left her parental home, therefore offence under Section 363 IPC is not made out against the present petitioner. He further submits that medical report doesn't corroborate the allegation of rape, therefore petitioner may be released on bail.
Learned Public Prosecutor opposed the bail application and submitted that as per metric certificate, the Date of Birth of prosecutrix is 25.06.1997 and the date of incident is a year before 10.11.2013, therefore at the time of incident the age of prosecutrix was below 16 years and prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. and during trial clearly stated that petitioner- accused committed rape with her, (3 of 3) [CRLMB-410/2017] since prosecutrix is minor, therefore her consent is immaterial. He submits that there are serious allegations against the petitioner regarding committing rape with prosecutrix who is a minor girl, therefore this second bail application may be dismissed.
I have considered the submissions made at Bar. So far as, letter of prosecutrix is concerned, prosecutrix during cross examination denied for writing such letter and co- ordinate Bench of this Court permitted petitioner to get it examine by expert, without report of expert the alleged letter cannot be relied upon at this stage. Since the age of prosecutrix at the time of incident is below 16 years, she is minor and she in her statement clearly stated that petitioner- accused committed rape with her several times, therefore considering the seriousness of allegations against the present petitioner, and without expressing any final opinion on the merit and de-merit of the case, I am not inclined to grant benefit of bail to the accused-petitioner.
Consequently, the bail application filed under Section 439 Cr.P.C. is dismissed.
However, petitioner will have liberty to file subsequent bail application, if necessity arises after receiving the report of FSL.
(BANWARI LAL SHARMA)J. S. Kumawat/01