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2023 DIGILAW 1401 (RAJ)

Jakar Khan @ Yakar Khan v. State Of Rajasthan

2023-07-19

KULDEEP MATHUR

body2023
JUDGMENT : 1. The instant appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant against the order dated 21.5.2022 passed by learned Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Cases, Bikaner in Cr. Case No.934/2022, whereby the bail application filed by the appellant, who has been arrested in connection with FIR No.34/2022 registered at Police Station Chhattargarh, District Bikaner, for offences under Sections 376(2)(J)(L), 506, 450 IPC, 3(1)(s), 3(1) (W)(i), 3(2)(v), 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, has been rejected. 2. As per prosecution case, on 08.03.2022, the complainant lodged an FIR No. 34/2022 at P.S. Chattargarh, District Bikaner with the allegation that the petitioner sexually assaulted and raped her daughter. The prosecutrix who is a mentally and physically challenged person was 4-5 months pregnant at the time of the lodging of FIR. On being asked by her mother, the prosecutrix with the help of sign language, divulged that the petitioner repeatedly sexually assaulted and threatened her, about 6 months prior to the lodging of FIR. 3. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the present case and is languishing in judicial custody since 10.03.2022. 4. To substantiate the aforesaid contention, learned counsel for the petitioner drew the attention of the court towards the fact that the learned trial Court on 04.05.2023, closed the prosecutrix cross examination owing to her mental incapacity and therefore, reliance on her statements recorded under Section 161 and 164 CrPC, wherein she has not named the petitioner, cannot be placed to show involvement of the petitioner in the present case. Learned counsel further contended that the prosecutrix suffers from mental and physical disability who is unable to differentiate between right and wrong. 5. Learned counsel further contended that since the complainant (mother of the prosecutrix) PW-1, in her statements before the competent criminal court dated 04.05.2023 has turned hostile, there is no apprehension of the petitioner influencing/tampering the witnesses. The trial of the case is likely to consume sufficiently long time. 6. On these grounds, he implored the Court to enlarge the petitioner on bail. 7. Per contra, learned Public Prosecutor has opposed the bail application and submitted that the petitioner and prosecutrix are aged about 54 years and 25 years respectively. The trial of the case is likely to consume sufficiently long time. 6. On these grounds, he implored the Court to enlarge the petitioner on bail. 7. Per contra, learned Public Prosecutor has opposed the bail application and submitted that the petitioner and prosecutrix are aged about 54 years and 25 years respectively. The petitioner can thus, be said to be in a position to dominate or influence the will of the prosecutrix who suffers from 60 per cent permanent disability as per the disability certificate annexed to the charge sheet. Learned Public Prosecutor invited the attention of the court towards the medical report which shows that the prosecutrix was 19 weeks pregnant at the time of lodging of FIR, thereby proving that the act of sexual assault took place. 8. Learned Public Prosecutor further drew the attention of the court towards the statements of prosecutrix recorded under Section 161 and 164 CrPC, with the help of special educator and submitted that she has named the petitioner. Learned Public Prosecutor further argued that the statements recorded under Section 164 CrPC cannot be discarded on the ground that the prosecutrix is permanently mentally challenged. It was vehemently submitted that Section 164 (5A) (b) CrPC provides that statements recorded under Section 164 CrPC be considered in lieu of examination-in-chief in cases of persons suffering from temporary or permanent physical or mental disability. Learned Public Prosecutor submitted that in the present case, the statements under Section 164 CrPC, had been recorded with the help of a special educator after following the due procedure prescribed under CrPC. 9. Learned Public Prosecutor on these grounds, urged the Court not to enlarge the petitioner on bail, looking to the seriousness of allegations levelled against him. 10. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. 11. Having gone through the FIR, challan papers, so also the statements of prosecutrix recorded under Section 164 CrPC, this Court prima facie finds that allegation against the petitioner, who is aged about 54 years is of committing sexual assault-rape upon the prosecutrix who is mentally and physically challenged person. 12. This Court prima facie finds that the prosecutrix in her statements recorded under Section 161 and 164 CrPC, with the help of special educator clearly alleged that she was subjected to sexual assault-rape by the present petitioner. 12. This Court prima facie finds that the prosecutrix in her statements recorded under Section 161 and 164 CrPC, with the help of special educator clearly alleged that she was subjected to sexual assault-rape by the present petitioner. Section 164 5A (b) CrPC clearly envisages that if a person making statement is temporarily or permanently mentally or physically disabled, the statement recorded before Magistrate with the assistance of an interpreter or special educator shall be considered a statement in lieu of examination-in-chief and maker of such statement can be cross examined on such statement, without the need for recording the same at the time of trial. 13. The peculiar circumstance in the present case is that the learned trial Court on 04.05.2023, closed the prosecutrix cross examination due to her mental incapacity to face cross examination. Further, the complainant (mother of the prosecutrix) PW-1, in her court statement dated 04.05.2023 has not supported the prosecution story and turned hostile. 14. This Court in the peculiar facts and circumstances of the case and looking to the statements of prosecutrix recorded under Section 161 and 164 CrPC with the aid of special educator coupled with the seriousness of the accusations against the present petitioner and the fact that trial is at the fag end, is not inclined to enlarge the petitioner on bail. 15. However, since the cross-examination of the prosecutrix has already been closed, this Court deems it appropriate to direct competent criminal court to conclude the trial pending against the petitioner within a period of three months from the date of this order. It is further directed that if the trial court deems it appropriate, the trial shall be conducted on day-to-day basis and unnecessary adjournments shall not be granted to any of the parties. 16. With these observations and directions, the instant bail application is dismissed.