Nikhil vs State
2022 Latest Caselaw 4026 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 2097/2022

Nikhil S/o Sh. Narayan Lal Suthar, Aged About 22 Years, R/o Falasiya Pipali Chawk Hal 294 Ambavadi Rampura, P.S. Naai, Dist. Udaipur (Raj.). (Presently Lodged In Central Jail, Udaipur).

                                                                  ----Petitioner
                                   Versus
State of Rajasthan through PP
                                                                ----Respondent


For Petitioner(s)        :     Mr. Pradeep Shah
                               Mr. Vivek Mathur
For Respondent(s)        :     Mr. Arun Kumar, PP
                               Mr. Mohit Sharma for the complainant

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Order

14/03/2022

The present bail application has been filed under Section 439

Cr.P.C. on behalf of the petitioner, who is in judicial custody in

connection with F.I.R. No.63/2022, Police Station Sukher, District

Udaipur, registered for the offences punishable under Section 376

of the Indian Penal Code.

Heard and considered arguments advanced by learned

counsel for the petitioner, learned Public Prosecutor and learned

counsel appearing on behalf of the complainant. Perused the

material available on record.

Learned counsel for the petitioner stated that as per FIR

itself, prosecutrix 'M' is a 23 years old matured lady; incident took

place two years ago from the date of filing of the FIR; consensual

relations were made between the petitioner and the prosecutrix so

(2 of 3) [CRLMB-2097/2022]

many times on the assurance of marriage; the prosecutrix became

pregnant and thereafter FIR has been lodged on the allegation

that the petitioner has advised the prosecutrix for removal of

foetus of two months and has refused/denied to marry with the

prosecutrix; petitioner is under incarceration since 30.01.2022;

and trial will take time. With these submissions, learned counsel

for the petitioner prayed that the benefit of bail may be granted to

the petitioner.

Per contra, learned Public Prosecutor as well as learned

counsel appearing on behalf of the complainant have vehemently

and fervently opposed the bail application of the accused-

petitioner.

Learned counsel appearing on behalf of the complainant in

support of his contentions has referred to and relied upon the

judgment passed by Hon'ble the Apex Court in the case of Anurag

Soni Vs. State of Chhattisgarh (SLP (Criminal) No.618/2019,

decided on 09.04.2019) and stated that as per the above-

mentioned judgment, since consent of the prosecutrix was taken

on misconception of promise, therefore, it amounts to commission

of 'rape'.

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.

(3 of 3) [CRLMB-2097/2022]

Having regard to the facts and circumstances of this case,

particularly looking to the facts that there is no satisfactory

explanation in regard to delay in filing of FIR; admittedly,

prosecutrix is a 23 years old matured lady; as stated above, the

consensual relations were made so many times on the assurance

of marriage and simply because, the petitioner has not married

the prosecutrix, it cannot be said that the relations were made

without consent of the prosecutrix; and trial will take sufficiently

long time, therefore, this Court is of the opinion that the present

bail application preferred on behalf of the accused-petitioner

deserves to be allowed.

Consequently, the bail application is allowed. It is ordered

that the petitioner - Nikhil S/o Narayan Lal Suthar, arrested in

connection with F.I.R. No.63/2022, Police Station Sukher,

District Udaipur, shall be released on bail, if not wanted in any

other case; provided he furnishes a personal bond of Rs.50,000/-

with two surety bonds of Rs.25,000/- 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.

(DEVENDRA KACHHAWAHA),J 34-Rashi/-

Powered by TCPDF (www.tcpdf.org)