Rajasthan High Court - Jodhpur
Nilesh N. Rai vs State Of Rajasthan on 26 August, 2021
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
...
S.B. Criminal Appeal No. 641/2021.
Nilesh N. Rai son of Shri Neeraj K Rai, aged about 24 years,
resident of 17/224, Chopasani Housing Board, Jodhpur (Raj.).
(At Present Lodged In Central Jail, Jodhpur).
----Appellant
Versus
1. State Of Rajasthan, Through PP
2. Chitra Singh daughter of Deepak Kumar, aged about 26
years, resident of 3-P-48, Kudi Bhagtasani Housing
Board, Jodhpur (Raj.).
----Respondents
For Appellant(s) : Mr. Akash Goyal.
For Respondent(s) : Mr. Shravan Bishnoi, PP.
Mr. Rajendra Prasad Saraswat, for the
complainant.
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA
Order
26/08/2021
The instant appeal has been filed under Section 14-A (2) of
the SC/ST (Prevention of Atrocities) Act on behalf of the accused-
appellant, who is in judicial custody in connection with F.I.R. No.
240/2021, Police Station Chopasni Housing Board, District
Jodhpur, registered for the offences under Sections 376(2)(N) of
the Indian Penal Code and Section 3(2)(V) of the SC/ST
(Prevention of Atrocities) Act against the order dated 28.07.2021
passed by the Special Judge, SC/ST (Prevention of Atrocities) Act
(2 of 4) [CRLAS-641/2021]
Cases, Jodhpur whereby, the bail application preferred under
Section 439 Cr.P.C. on behalf of the appellant was rejected.
Heard learned counsel appearing on behalf of the accused-
appellant, learned Public Prosecutor as well as learned counsel
appearing on behalf of the complainant. Perused the material
available on record.
Learned counsel for the appellant stated that the prosecutrix
"C" was engaged with the accused-appellant (photographs of
engagement ceremony as well as Invitation Card along with
Whatsapp chatting have been submitted along with the present
appeal); that due to some dispute arises between the parties, the
present First Information Report (FIR) has been lodged against
the accused-appellant; that the accused-appellant has wrongly
been implicated in this case; and that the trial will take time. With
these submissions, learned counsel for the appellant prayed that
the benefit of bail may be granted to the accused-appellant by
allowing the present appeal.
Per contra, learned Public Prosecutor as well as learned
counsel appearing on behalf of the complainant have vehemently
and fervently opposed the present criminal appeal and prayer of
bail made on behalf of the accused-appellant and stated that the
prosecutrix has supported the story of the prosecution during her
statement recorded under Section 164 Cr.P.C. Learned counsel for
the complainant stated that initially, the accused-appellant has
assured the prosecutrix that he will provide her good job; that
thereafter, the accused-appellant has made sexual relations with
(3 of 4) [CRLAS-641/2021]
the prosecutrix by giving her assurance of marriage; that
thereafter, ceremony of engagement of the accused-appellant with
the prosecutrix has also been performed; that lastly, the accused-
appellant denied to marry the prosecutrix and, therefore,
considering all these facts, benefit of bail may not be granted to
the accused-appellant.
Having regard to the totality of facts and circumstances of
the present case, particularly looking to the photographs of
engagement ceremony (available in the case diary); further
screenshots of whatsapp chatting as submitted along with the
present appeal by the learned counsel for the appellant; as stated
above that the sexual relations were made on the assurance of
marriage and simply because, the appellant had denied to marry
the prosecutrix, it cannot be said that the relations were made
without consent of the prosecutrix; and that the trial will take
sufficiently long time, therefore, this Court is of the opinion that
the appeal deserves to be allowed and the appellant deserves to
be enlarged on bail.
Hon'ble the Supreme Court in the case of Dhruvaram
Murlidhar Sonar Vs. The State of Maharashtra & Ors. (Criminal
Appeal No. 1443/2018, decided on 22.11.2018 has held that the
consensual sex will not amount to rape. Similarly, while following
the judgment in the case of Dhruvaram (supra), this Court in the
case of Sachin Sukhla Vs. State of Rajasthan & Anr. (Criminal
Misc. Petition No. 2092/2019, decided on 05.01.2021) has also
observed that the consensual intercourse will not amount to rape.
Taking into consideration the observations and ratio in both the
above-said judgments, this Court is of the opinion that the present
(4 of 4) [CRLAS-641/2021]
criminal appeal preferred on behalf of the accused-appellant
deserves to be allowed.
Consequently, the instant appeal is allowed. The impugned
order dated 28.07.2021 passed by the Special Judge, SC/ST
(Prevention of Atrocities) Act Cases, Jodhpur is set aside. It is
ordered that the accused-appellant, Nilesh N. Rai S/o Neeraj K,
Rai, arrested in connection with F.I.R. No.240/2021, Police Station
Chopasni Housing Board, District Jodhpur, shall be released on
bail, if not wanted in any other case, provided he furnishes a
personal bond of Rs.50,000/- along with two sureties of
Rs.25,000/- each to the satisfaction of the learned Trial Court with
the stipulation to appear before that Court on each and every date
of hearing and whenever called upon to do so till the completion of
the trial.
(DEVENDRA KACHHAWAHA),J
207-Mohan/-
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