1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. Criminal Misc. Bail Application No. 5164/2009 Bharat lal vs. State of Rajasthan Dated : 03.09.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Pankaj Gupta, for the petitioner. Mr. Amit Punia, Public Prosecutor for the State. Mr. Nawal Singh, for the complainant. This order governs the disposal of bail application filed under Section 439 of Cr.P.C. by Shri Pankaj Gupta Advocate on behalf of the applicant Bharat lal pertaining to F.I.R. No. 112/2009 at police station Ramgarh Pachwara, District Dausa, in the offences under Sections 363, 366, 457 and 376 of IPC. 2. Heard the learned counsel for the petitioner, learned counsel for the complainant as also learned Public Prosecutor appearing for the State and perused the relevant material available on record. 3. Learned counsel for the petitioner has canvassed that the prosecutrix did not name the petitioner in the FIR. It is the co-accused Bunti who is alleged to have taken from her house to the culvert of village Rampura, from where she was recovered in a perplexed state. Learned counsel has further contended that the prosecutrix in her statements recorded under Section 164 of Cr.P.C. has categorically stated that she knew both Bharat lal and Bunti, who used to come to her house. Had she known them from earlier, she would have disclosed the name of the petitioner in the FIR. It is thirteen days after the occurrence, she has falsely 2 implicated the petitioner in this case. Learned counsel has further contended that at the time of occurrence, she was approximately 18 years of age. Thus, from no stretch of imagination it can be inferred that the petitioner was involved in the commission of rape having committed upon the prosecutrix Rekha, as such, he may be granted indulgence of bail. 4. Learned counsel for the complainant as also learned Public Prosecutor appearing for the State have vehemently opposed the bail petition on the ground that at the time, when FIR was lodged, soon after ten hours of occurrence, she was in a perplexed state and could not disclose the story genuinely but later on when she was examined under Section 164 of Cr.P.C., she unfolded the true story before the Magistrate. So far as , the date of birth of prosecutrix is concerned, her date of birth as per the school certificate is 26.06.1995. As per this date of birth, the prosecutrix is found to have been below 15 years of age on the date of occurrence. The offence is of grave nature. The petitioner is found to have ravished the prosecutrix Rekha along with the co-accused Bunti against her will, hence, the bail petition may be dismissed. 5. Having reflected over the submissions made at the bar and scanned the relevant material available on record, it is noticed that two different school certificates disclosing two different date of birth have been filed by both the parties before the Investigating Officer, which are on record. This court is not required to determine the age of the prosecutrix for adjudication of the bail petition. It is true, that the name of the petitioner does not figure in the FIR, however, the prosecutrix has alleged the petitioner having committed rape upon her. 3 I, without expressing any opinion on the merits of the case but keeping in view the facts and circumstances of the case in totality, do not feel inclined to grant indulgence of bail to the accused petitioner. 6. In the result, the bail petition filed on behalf of the petitioner Bharat lal under Section 439 of Cr.P.C. stands dismissed. 7. However, keeping in view the submissions made by the learned counsel for the petitioner, he is granted liberty to file bail petition afresh after recording the statements of prosecutrix during trial. (MAHESH BHAGWATI),J. Mak/- 2