SURESH CHAND KACHHAWA (YOGI) Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE accused -petitioner has filed this fifth application for grant of bail under Section 439 Cr.P.C. in respect of FIR No. 344/2012 registered at Police Station Amer, District Jaipur (North) for offences under Sections 376, 384 and 342 IPC. The first application filed by the petitioner for grant of bail under Section 439 Cr.P.C. was allowed by this Court vide order dated 6.6.2013 passed in S.B. Criminal Misc. Bail Application No. 4702/2013 at the stage of investigation. The order dated 6.6.2013 was challenged by the complainant -party by way of Criminal Appeal No. 185/2014 before Hon'ble Supreme Court and Hon'ble Court vide order dated 20.01.2014 cancelled the order of bail, but at the same time liberty was given to the petitioner to renew the prayer for bail at an appropriate stage. Meanwhile, after investigation charge -sheet was filed and during the course of trial statements of some of the material prosecution witnesses including that of the prosecutrix was recorded by the trial Court and in these circumstances the present application has been filed.

(2.) IT was submitted by the learned counsel for the petitioner that benefit of bail was granted to the petitioner by this Court vide order dated 06.06.2013 mainly on the ground that the prosecutrix in her statement recorded on 23.8.2012 during the course of inquiry of missing person report lodged by the Uncle of the prosecutrix levelled no allegation of rape against the petitioner or any other person rather it was stated by her that no rape was committed upon her and during the course of her cross -examination she has admitted that at her instance the aforesaid statement was recorded by a Police Officer and it bears her signature also. It was further submitted that the aforesaid statement of the prosecutrix is her admission regarding the incident and it is admissible in evidence even if she was not confronted with this statement during the course of her cross -examination. It was also submitted that during the course of her cross -examination the prosecutrix has made admissions about several material facts which are clear indication of the fact that no incident of rape at the hand of petitioner occurred in any manner with the prosecutrix and false FIR was lodged only by the reason that petitioner, prior to the registration of the present FIR, lodged FIR against the family members of the prosecutrix.

(3.) ON the other hand, learned Public Prosecutor supported by the learned counsel for the complainant, submitted that there is no substantial change in the facts and circumstances of the case after the bail order passed by this Court was cancelled by Hon'ble Supreme Court. It was further submitted that in absence of confrontation being made with the aforesaid statement of the prosecutrix during the course of her cross -examination, aforesaid statement is not admissible in evidence and no benefit can be granted to the petitioner merely because allegation of rape was not made in the aforesaid statement more particularly in view of the fact that despite aforesaid statement Hon'ble Supreme Court was pleased to cancel the bail granted to the petitioner. It was also submitted that the prosecutrix in her statement recorded under Sections 161 and 164 Cr.P.C. also made allegation of rape against the petitioner.