Prabhatiram Vs. State of Rajasthan

Prabhatiram vs State of Rajasthan

Disposition Petition allowed Court Rajasthan Decided Feb 12, 1991

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Citation: sooperkanoon.com/759843
Court: Rajasthan High Court
Judge: N.L. Tibrewal, J.
Decided On: Feb 12, 1991
Case Number: S.B. Cr. Misc. IInd Bail Appli. No. 408 of 1991
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

Penal Code - Sections 366, 376 and 392 and Criminal Procedure Code - Section 439--Bail--Accused in jail for last 7 months--Prosecutrix 35 years old--No definite medical opinion about rape--No injuries on Vagina--Prosecutrix not appearing in Court--Held, accused can not be kepi behind bars for uncertain period and ac...

Key legal issue: Criminal
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Prabhatiram

Respondent

State of Rajasthan

Legal References

Reported In: 1991(1)WLN391

Excerpt

.....jail since 5.7.90 and seven months have already passed since then. admittedly smt. chiria is an elderly woman aged about 35 years or so. the doctor has opined that no definite opnion about rape can be made. if four persons had committed rape of smt. chiriya one after the other and that two three times each of them, then smt. chiriya must have sustained serious injuries on her vagina.;consideration all the above facts and the conduct of the prosecutrix in not appearing in the court for her statement, i am of the view that the petitioner should not be kept behind the bars for uncertain period and they should be released on bail under section 439 cr. pc.;bail granted. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. .....learned p.p. opposes the grant of bail to the petitioners on the ground that they are facing trial under serious offences.7. i have given my careful consideration to the rival contentions made by the learned counsel for the petitioner and the learned p.p. it is no doubt true that this is a second bail application was dismissed with a clear direction that arguments of the learned counsel for the petitioners can appreciated only after the statement of smt. chiriya is recorded by the trial court. from the order of the trial court dated 1.2.91, it is clear that smt. chiriya did not appear in court to given her statement inspite of her service and she has not been coming since last so many dates which have been mentioned above.8. thus, taking into considertion all the above facts and the conduct of the prosecutrix in not appearing in the court for her statement, i am of the view that the petitioners should not be kept behind the bars for uncertain period and they should be released on bail under section 439 cr. pc. consequently, i allow the petition and direct that the petitioners be released on bail provided each of them furnish a personal bond in the sum of rs. 10,000/- with two sureties in rs. 5,000/- each to the satisfaction of the trial court with a stipulation that they shall appear in the their court or any other court on all the dates of hearing and as would be called upan to appear before the court during the pendency of trial in this case.

Full Judgment

N.L. Tibrewal, J.

1. The petitioners are facing trial in the Court of Additional Sessions Judge No. 2 Alwar for the offences under Sections 366, 376 and 392 IPC. The incident is said to be of 20.4.90, while the report of the incident was lodged on 23.4.90 at 12.15 P.M. by Smt. Chiriya who is an elderly woman aged about 35 years or so. In the said report, she implicated the petitioner and two other co-accused persons to have taken her in a jungle and committed rape on her thrice by each of them.

2. After registration of the case, the police submitted a charge sheet against the accused persons and now they are facing trial as stated above.

3. The petitioners had approached to this Court for grant of bail prior to the present bail application and the said application was dismissed of on 31.8.90 with the following observations:

The submissions of the learned Counsel for the petitioners can be properly appreciated after the statement of Smt. Chiriya is recorded in the trial Court and a full flegded cross-examination is made to her to bring out the circumstances for disbelieving her statement of various points as submitted before me. Before her statement is recorded it cannot be properly appreciated the arugmpents which have been made by the learned Counsel for the petitioner before me. Consequently I dismiss this application at this stage. I have been informed that the charge sheet has been filed and the case might have been committed in the Court of learned Sessions Judge or is likely to be committed. The learned trial Court shall record the statement of the prosecutrix as first witness. After her statement is recorded, the counsel for the petitioner shall be at liberty to move a fresh bail application before the trial Court. The learned Counsel further submit that the trial of this case should be held at Alwar. They can make a prayer before the trial Court and if the trial Court feels it convenient, it may accept their prayer. With these observations, the petition is dismissed.

4. From the order of the learned Aditional Sessions Judge also it appears the Smt. Chiriya, whose statement was to be recorded as witness No. 1, did not appear in the court for giving her evidence on the last several dates fixed for recording her evidence. The learned Judge has observed in the order dated 1.2.91 that Smt. Chiriya did not appear in the Court on 21.12.90, 4.1.91, 11.1.91, 19.1.91 and 25.1.91 for her statement inspite of her service. The next date was 8.2.91 after the order passed by the learned Additional Sessions Judge on 1.2.91, and I am informed that on 8.2.91 also Smt. Chiriya did not appear, as such, her statement could not be recorded as per direction of this Court.

5. The learned Counsel for the petitioner submits that both the petitioners are in jail since 5.7.90 and seven months have already passed since then. He further submits that admittedly Smt. Chiriya is an elderly woman aged about 35 years or so. The learned Counsel further drew my attention towards the medical report in which the doctor has opinion that no definite opinion about rape can be made. The argument of the learned Counsel for the petitioner is that if four persons have committed rape on Smt. Chiriya one after the other and that two three times each of them, then Smt. Chiriya must have sustained serious injuries on her vagina.

6. The learned P.P. opposes the grant of bail to the petitioners on the ground that they are facing trial under serious offences.

7. I have given my careful consideration to the rival contentions made by the learned Counsel for the petitioner and the learned P.P. It is no doubt true that this is a second bail application was dismissed with a clear direction that arguments of the learned Counsel for the petitioners can appreciated only after the statement of Smt. Chiriya is recorded by the trial Court. From the order of the Trial Court dated 1.2.91, it is clear that Smt. Chiriya did not appear in Court to given her statement inspite of her service and she has not been coming since last so many dates which have been mentioned above.

8. Thus, taking into considertion all the above facts and the conduct of the prosecutrix in not appearing in the Court for her statement, I am of the view that the petitioners should not be kept behind the bars for uncertain period and they should be released on bail under Section 439 Cr. PC. Consequently, I allow the petition and direct that the petitioners be released on bail provided each of them furnish a personal bond in the sum of Rs. 10,000/- with two sureties in Rs. 5,000/- each to the satisfaction of the Trial Court with a stipulation that they shall appear in the their Court or any other Court on all the dates of hearing and as would be called upan to appear before the Court during the pendency of trial in this case.

Same Court & Year Rajasthan · 1991 Same Parties Prabhatiram vs State of Rajasthan Same Subject Criminal Same Judge N.L. Tibrewal, J.

Criminal