High Court of Rajasthan dismissed a second bail application filed for offences under IPC and POCSO. The court rejected the claim that the prosecutrix was not a minor at the time of the incident, holding that she was a minor based on her date of birth.
Bail application under Section 439 Cr.P.C. dismissed.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 5934/2022
Sukhsagar Kahar S/o Shri Ramlal Kahar, Aged About 23 Years, Residence Of Keero Ka Jhopada, Nenwa, Teshil Nenwa, District Bundi Rajasthan (At Present Confined At Central Jail Tonk)
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent For Petitioner(s) : Mr. Anil Kumar Tailor For Respondent(s) : Mr. Mahendra Meena, Public Prosecutor
HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
Order
06/07/2022
This second bail application has been filed under Section 439 Cr.P.C in connection with FIR No.117/2021 registered at Police Station Ghar, District Tonk for the offences under Sections 143, 363, 366-A, 376(2)(n) & 344 of IPC and under Section 5(i)(ii)(I)/6 of POCSO Act.
Learned counsel for the petitioner submits that Police has filed challan on 08.04.2022 and the petitioner is behind the bars since long. Counsel further submits that as per the statement of the prosecutrix, she was in a consensual relationship with the petitioner and as per her statement recorded under Section 164 of Cr.P.C, she is not a minor. Counsel also submits that as per the age examination report, she is above 18 years and below 20 years on 06.01.2022. Looking to the cross-examination of PW-1- Govind Sahay, PW-2- Santra, PW-3- Dr. Utkarsha Srivastava and PW-4-
(2 of 3) [CRLMB-5934/2022]
prosecutrix, it is established that at the time of incident, the prosecutrix was not minor and PW-4 prosecutrix is also a hostile witness. It is further submitted that at present, the prosecutrix is in Nari Niketan. The petitioner has no criminal antecedents. Hence, the petitioner may kindly be released on bail.
Learned Public Prosecutor has opposed the second bail application.
Heard. Perused the material available on the record.
First bail application of the petitioner was dismissed by
this Court vide order dated 17.02.2022. Paragraph 5 of the said order reads as under:-
“ The FIR has been lodged by the father of the prosecutrix. As per school certificate, date of birth of the prosecutrix is 15.10.2004 and she was minor at the time of alleged incident. Therefore, looking to the statement of prosecutrix recorded under Sections 161 ande 164 Cr.P.C; but without expressing any opinion on the merits/demerits of the case, this Court deems it not proper to release the petitioner on bail .”
Charge-sheet has been filed against the petitioner for the offence under Sections 363, 366A, 376(2)(n) & 344 of IPC and 5(j)(ii)(l)/6 of POCSO Act. PW-4- Prosecutrix, in her crossexamination by learned Public Prosecutor has stated that her Date of Birth is 15.10.2004. PW-2-Santra, who is sister of father of the prosecutrix has deposed that the date of Birth of the prosecutrix is 15.10.2004. PW-1- Govind Sahay, Professor of Government Senior Upadhyay Sanskrit Vidyalaya has deposed that date of Birth of the student (Prosecutrix) is 15.10.2004. During the course of arguments, it is submitted by learned counsel for the petitioner that at present, the prosecutrix is in Nari Niketan.
(3 of 3) [CRLMB-5934/2022]
PW-4- Prosecutrix has deposed that she got pregnant by the petitioner Sukhsagar Kahar and has given birth to a male child on 26.05.2022. Therefore, looking to the above facts and circumstances of the case and gravity of the offence but without expressing any opinion on the merits/demerits of the case, I deem it not proper to enlarge the petitioner on bail.
Accordingly, the second bail application of the petitioner
under Section 439 Cr.P.C. is dismissed.
(CHANDRA KUMAR SONGARA),J
Satyendra/19
1 issue framed by the court
Whether the petitioner should be released on bail in a POCSO case where the prosecutrix alleges she was a minor.
3 provisions across 3 enactments
Sukhsagar Kahar
State Of Rajasthan
Chandra Kumar Songara
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
