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2019 DIGILAW 3069 (RAJ)

Karansingh v. State of Rajasthan

2019-12-17

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. 2. The instant bail application under Section 439 Cr.P.C. has been preferred on behalf of the petitioner who is in custody in connection with F.I.R. No.109/2019, registered at Police Station Boranada, District Jodhpur for the offences under Sections 354B, 376(2)(i) of the IPC and Section 3/4 of the POCSO Act. 3. Learned counsel Shri Choudhary urges that the entire prosecution case is false and fabricated. The petitioner and the victim's family members indulged in a quarrel with each other on 22.04.2019. The petitioner was arrested in proceedings under Section 107-151 Cr.P.C. on 23.04.2019. The complainant lodged the FIR only out of vengeance. There is no allegation in the FIR that the petitioner subjected the victim to sexual assault. He further urges that while in the FIR, the date of incident is stated as 20.04.2019 but when, the Investigating Officer was apprised by the accused that the victim had appeared in a school examination on 20.04.2019, the date of incident was subsequently altered to 19.04.2019 so as to suit the fabricated proseuction case. He further submits that if the medical opinion as deposed by PW-2 Dr. Manju Lohiya is seen, manifestly, the prosecution allegation that the accused had sexually assaulted the victim 3-4 days before the date of medical examination (23.04.2019), is totally demolished. He thus urges that the petitioner, who is in custody from April, 2019, deserves to be enlarged on bail during pendency of the trial. 4. On the other hand, learned Public Prosecutor and the learned counsel representing the complainant vehemently and fervently opposed the submissions advanced by the petitioner's counsel. 5. It is manifest that as per the FIR lodged by victim's father Shashi Prakash at the Police Station Boranada on 23.04.2019, the incident of sexual assault with the victim took place on 20.04.2019 at about 12 o'clock. In this belated FIR, there is no allegation beyond sexual assault and there is no allegation of penetrative sexual assault. It is also admitted position from the testimony of the victim PW-1 that she was undertaking examinations which had started from 11.04.2019 and continued till 20.04.2019. The time of examinations as per the time table shown to this Court was between 8:30 am to 11:45 am. It is also admitted position from the testimony of the victim PW-1 that she was undertaking examinations which had started from 11.04.2019 and continued till 20.04.2019. The time of examinations as per the time table shown to this Court was between 8:30 am to 11:45 am. Manifestly, thus, there was no possibility that any such incident as alleged in the FIR could have taken place on that day. Realising that the date of incident as set out in the FIR falsified the story, the date was changed to 19.04.2019 during investigation itself. 6. Though, as per the medical report, the hymen of the victim was found torn when Dr. Manju Lohiya examined her and issued the medical report Ex.P-2 but from the cross examination of the Doctor it is clear that there were no signs of hymen being freshly torn. The Doctor particularly admitted that in case there was a fresh sexual assault leading of tearing of hymen, the symptoms of pain, reddishness and swelling would remain for about 8-10 days and thus, would be minimally required for healing up of the membrane. 7. All these facts are significant and create doubt on the prosecution case. However, any comment by this Court at this stage may prejudice the trial. 8. Thus, making it clear that none of the observations made hereinabove shall prejudice the final decision of the case, this Court is of the opinion that the petitioner deserves to be released on bail. 9. Accordingly, the bail application under Section 439 Cr.P.C. is allowed and it is directed that the petitioner Karan Singh arrested in connection with the F.I.R. No. 109/2019, registered at Police Station Boranada, District Jodhpur shall be released on bail provided he furnishes a personal bond of Rs.50,000/- and two surety bonds of Rs.25,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.