Rajkumar S/O. Daujaram vs State Of M.P

Vivek Rusia, J

This is a repeat (2nd) application under section 439, Cr.P.C., for grant of bail filed by the applicant - Rajkumar S/o. Daujaram who is in custody since

3.9.2019 in connection with Crime No.454/2019 registered at Police Station Azad Nagar, District Indore for the offence under Sections 376(2)(n),

506-II of the IPC; u/s. 5(1)/6, 11(i)(2), 11(v)/12 of the Protection of Children from Sexual Offences Act; and u/s. 67-A and 67-B of the Information

Technology Act. The first application was dismissed as withdrawn on 5.2.2020.

Learned counsel for the applicant submits that no document has been collected by the prosecution to establish the age of the prosecutrix at the time of

commission of the offence. P.W.1 in her statement has stated that year of her birth is 2002 and if the prosecution fails to establish that she was minor

at the time of commission of offence, then only offence u/s. 376 is made out otherwise it is a case of consent. In her statement u/s. 164 of the Cr.P.C.

she has not stated about the commission of rape with her by the applicant and she has improved her statement in the Court-statement. There is no

definite opinion of the Doctor about commission of rape with her. The applicant is in custody since 3.9.2019 and there is no progress in the trial. He,

therefore, prayed for grant of bail to the applicant.

Learned Panel Advocate opposes the prayer by submitting that in view of the statement of the P.W.1, no case for grant of bail is made out and this

application is liable to be rejected.

The whole controversy is about the date of birth of the prosecutrix at the time of commission of the offence and there is no mark-sheet of the

prosecutrix on record. The prosecution is directed to first lead the evidence before the trial Court to establish the age of the prosecutrix. Thereafter,

the applicant would be at liberty to file a fresh application for bail.

With the aforesaid, at this stage, the M.Cr.C. is dismissed.