BHAWANI Vs. SUJI

JUDGEMENT

(1.) This application for bail under Sec. 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.371/2022, registered at Police Station Soorsagar, District Jodhpur, for offences under Ss. 363, 376(2)(N), 376(3) IPC and Sec. 5(L) and 6 POCSO Act Cases, 2012.

(2.) Learned counsel for the petitioner submitted that though an F.I.R. has been lodged against the present petitioner under Sec. 363, 376(2)(N), 376(3) IPC and Sec. 5(L) and 6 POCSO, her age has been mentioned as 13 years but the prosecutrix in the absence of any documentary proof, as per the provisions of Juvenile Justice Act, was subjected to an ossification test in the department of Forensic Science, (M.G. Hospital, Jodhpur), Dr. S.N. Medical College, Jodhpur, wherein after physical, dental and radiological examination, it has been opined that the age of the prosecutrix is between 17-19 years. Learned counsel submitted that petitioner who is a young boy of 23 years was having consensual relations with the prosecutrix. It was further submitted that in the initial F.I.R. filed by the mother of the prosecutrix, petitioner was not named as an accused and when the prosecutrix was found, she submitted in writing before SHO, Police Station Soorsagar, Jodhpur that she had not been subjected to any sexual assault, therefore, the case may be closed. Learned counsel further submitted that prosecutrix in her statements recorded under Sec. 161 Cr.P.C. clearly stated that she remained in the company of the present petitioner voluntarily from 27/12/2022 to 28/12/2022 and denied the allegation of she being subjected to sexual assault by the present petitioner. According to learned counsel, the prosecutrix in the pressure of her family members or otherwise, has changed her stance in the statements recorded under Sec. 164 Cr.P.C. and accused the present petitioner of committing sexual assault upon her. Learned counsel submitted that in view of the fact that petitioner and prosecutrix are in their adolescent age, prima facie there is no reason not to enlarge the petitioner on bail particularly when , prosecutrix in her initial statements before the Investigating Agency has denied allegation of sexual assault by the petitioner. The petitioner is in judicial custody; challan has already been filed and the trial of the case will take sufficiently long time, therefore, the benefit of bail should be granted to the accused-petitioner.

(3.) Learned Public Prosecutor has opposed the bail application. Having considered the rival submissions, facts and circumstances of the case, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted.