Shankar Vs. State of Rajasthan - Court Judgment

Excerpt:
criminal procedure code - section 439-bail--medical examination does not mention injuries on body but it relate to age--different statements of witnesses--petitioner in custody for 3 months--held, he be released on bail.;medical examination does not say that there were any injuries on her body. in fact, the medical examination is as regards age only. statements under sections 161 & 164, cr.p.c. of phooli also given out a different story. considering this and that the petitioner has remained in custody for over three months, he be released on bail on suitable conditions.;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. - five thousand) with one surety in the like amount to the satisfaction of the trial court with the stipulation to appear before that court and when called upon to do so using the pendency of the trial with the conditions that (a) he shall not commit any offence (b) he shall not temper with the witnesses of prosecution in any manner.mohini kapoor, j.1. this is a third bail application by the petitioner. earlier two were dismissed and now challan has been filed. the case of the accused is that prosecutrix phoolibai was unhappy with her-in-laws and was involved with the petitioners and accompanied him and wanted to marry him to this effect she has also prepared an affidavit which was attested before notary public at khetri. her age, according to medical opinion is about 16 years. it has been pointed out that she has given divergent statement under sections 161 & 164, cr.p.c. the manner in which she was recovered also different from what the prosecution has said. in her statement under section 164, cr.p.c. she has tried to make the case as one of going rape.2. as against this, the learned counsel for the complainant has contended that all the material to which attention has been invited to say was before the court when the earlier bail application were rejected and there is no ground for changing the opinion at this stage.3. i have carefully considered the contentions and peruse the record by going through the statements of the witnesses. it would not be appropriate witnesses. it would not be appropriate to express any opinion on the merits of the case. medical examination does not say that there were any injuries on her body. in fact, the medical examination is as regards age only. statements under sections 161 & 164 cr.p.c. of phooli also given out a different story. considering this and that the petitioner has remained in custody for over three months, he be released on bail on suitable conditions.4. it is, therefore, ordered that the accused petitioner shankar be released on bail provided that he furnishes a personal bond in the sum of rs. 5,000/- (rs. five thousand) with one surety in the like amount to the satisfaction of the trial court with the stipulation to appear before that court and when called upon to do so using the pendency of the trial with the conditions that (a) he shall not commit any offence (b) he shall not temper with the witnesses of prosecution in any manner.