Suresh Chand Kachhawa (Yogi) vs State of Rajasthan

Prashant Kumar Agarwal, J—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.

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.

In support of his submissions, learned counsel for the petitioner relied upon the cases of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Another, AIR 2004 SC 175 : (2003) 8 JT 267 : (2004) 136 PLR 405 : (2003) 9 SCALE 210 : (2003) 8 SCC 745 : (2003) 5 SCR 90 Supp , Thiru John Vs. The Returning Officer and Others, AIR 1977 SC 1724 : (1977) 3 SCC 540 : (1977) 3 SCR 538 , Union of India (UOI) Vs. Moksh Builders and Financiers Ltd. and Others, AIR 1977 SC 409 : (1977) 1 SCC 60 : (1977) 1 SCR 967 , Bharat Singh & Ors. Vs. Mst. Bhagirathi reported in Bharat Singh and Another Vs. Bhagirathi, AIR 1966 SC 405 : (1966) 1 SCR 606 and Income Tax Officer, Jind Vs. Mangat Ram Norata Ram Narwana and Another, (2011) 242 CTR 113 : (2011) 336 ITR 624 : (2011) 7 JT 162 : (2011) 6 SCALE 605 : (2011) 5 SCR 1137 : (2011) 200 TAXMAN 432 .

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.

On consideration of submissions made on behalf of the respective parties and the material made available for my perusal including the statement of the prosecutrix recorded during trial, copy of which has been made available on record and more particularly in view of the admissions made by her about some of the material facts during the course of cross-examination, but without expressing any final opinion on the merit and demerit of the case, I find it a fit case in which benefit of bail is to be granted to the petitioner under Section 439 Cr.P.C.

Consequently, the fifth bail application filed under Section 439 Cr.P.C. is allowed.

It is ordered that the accused-petitioner-Suresh Chand Kachhawa (Yogi) son of Shri Ramji Lal, in FIR No. 344/2012, registered at Police Station Amer, District Jaipur (North), shall be released on bail; provided he furnishes a personal bond of Rs. 50,000/- (Rupees Fifty thousand only) and two surety bonds of Rs. 25,000/- (Rupees Twenty Five thousand only) 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.