Rajasthan High Court - Jodhpur
Rafiq vs State Of Rajasthan (2025:Rj-Jd:47531) on 6 November, 2025
[2025:RJ-JD:47531]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 12516/2025
Rafiq S/o Rehman, Aged About 27 Years, Resident Of 14/305,
Chopasani Housing Board, Jodhpur (At Present Lodged In Central
Jail, Jodhpur.) ----Petitioner
Versus
1. State Of Rajasthan, Through Public Prosecutor
2. Smt Ra, Resident Of Pagariya, Jhalawar Haal Dali Bai
Chorah, Jodhpur (Raji Bai W/o Gopal Lal, R/o Bhagwan
Ghar Risot, Dali Bai Choraha Ke Pass, Rajiv Gandhi Nagar
Jodhpur City West, Raj.) ----Respondents
For Petitioner(s) : Mr. Rishi Soni
Ms. Kamini Joshi
For Respondent(s) : Mr. Pawan Kumar Bhati, PP
Mr. Siddharth Mewara for
Mr. Moti Singh
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
(i) Arguments concluded on: 29/10/2025
(ii) Judgment reserved on: 29/10/2025
(iii) Full judgment/Operative part: Full judgment
(iv) Judgment pronounced on : 06/11/2025
The instant application for bail under Section 483 of BNSS
(439 of Cr.P.C.) has been filed by the petitioner who has been
arrested in the present matter. The requisite details of the matter
are tabulated herein below:
S. No. Particulars of the case
2. Police Station Rajiv Gandhi Nagar
3. District Jodhpur City West
4. Offences alleged in the FIR 87
5. Offences added, if any Sec. 137(2), 96, 64(1) of
BNS, Sec. 3/4, 11/12 of
POCSO, Sec. 84 of JJ Act
and Sec. 3(I)(W)(II), 3(2)
(V) of SC/ST Act
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Learned counsel for the petitioner submits that, as per the
prosecution's story, a written report was lodged by Smt. "Ra"
alleging that her minor daughter, the victim "P", had been
abducted by the present petitioner-accused, Rafiq Khan, who
allegedly harboured an ill intention towards the victim. It is
alleged that the petitioner, who runs a pushcart adjacent to that
of the victim's father, abducted the victim with the intent of
forcibly marrying her. Subsequently, a Habeas Corpus Petition No.
144/2025 was filed before this Court, and on 02.07.2025, the said
petition was listed, whereupon the corpus was produced and
handed over to her parents. Thereafter, a complaint was filed
alleging that the petitioner had forcibly married the victim and
fabricated certain forged documents to support the said act.
Learned counsel for the petitioner contends that the
relationship between the petitioner and the victim was consensual
in nature. In support of this contention, reliance has been placed
upon the victim's statements recorded under Sections 180 and
183 of the Bhartiya Nagarik Suraksha Sanhita (BNSS), wherein
the victim has stated that she accompanied the accused of her
own free will and that she became pregnant as a result of their
relationship. Learned counsel further submits that, as per the
marksheet of National Institute of Open Schooling, placed on
record, the date of birth of the victim is 01.01.2007 (18 years and
1 month). It is further urged that the petitioner has been in cus-
tody since his arrest, and that the trial is likely to take a consider-
able period of time to conclude. Therefore, it is prayed that the
petitioner may be enlarged on bail.
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Per contra, learned Public Prosecutor as well as learned
counsel for the complainant have vehemently opposed the prayer
for bail. It is submitted that the victim was a minor at the time of
the alleged incident, and therefore any consent she gave would be
of no legal consequence. To substantiate their submission,
reliance has been placed upon the school mark-sheet of the
victim, wherein her date of birth is recorded as 19.04.2008, which
clearly establishes that the victim was below 18 years of age at
the time of the incident. It is, therefore, contended that the
benefit of bail ought not to be extended to the petitioner.
I have heard the rival submissions and perused the material
available on record.
The questions that arise for consideration before this Court
are:
(i) Whether the victim accompanied the petitioner of her own free will;
and
(ii) Whether the alleged consent, assuming it to be so, can be treated as
valid in law, particularly in view of the apparent contradiction in the
record regarding the victim's date of birth.
Upon a careful perusal of the record, especially the
statements of the victim recorded under Sections 180 and 183 of
the BNSS, it appears that the victim has categorically stated that
she had accompanied the petitioner voluntarily and that no force
or coercion was exercised upon her by the petitioner. However,
the determination of whether such consent is legally valid would
depend upon the age of the victim at the relevant time, which is
presently in dispute, as different documents record her date of
birth as 01.01.2007 and 19.04.2008, respectively.
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This Court has carefully examined the documents produced
by both parties. As per the victim's school mark-sheet, her date of
birth is recorded as 19.04.2008, whereas, as per the Secondary
Marksheet issued by the National Institute of Open Schooling, her
date of birth is recorded as 01.01.2007. There is, thus, a
difference of 1 year, 3 months, and 18 days between the two
records.
The Hon'ble Supreme Court, in Mahadeo v. State of
Maharashtra & Anr., Criminal Appeal No. 6 of 2010, decided on
23rd July 2013, while dealing with the question of determination
of the age of the victim, has observed as under:
"10. We can also in this connection make a reference to a statutory
provision contained in the Juvenile Justice (Care and Protection) Rules,
2007, whereunder Rule 12, the procedure to be followed in determining the
age of a juvenile has been set out. We can usefully refer to the said
provision in this context, inasmuch as under Rule 12 (3) of the said Rules, it
is stated that in every case concerning a child or juvenile in conflict with
law, the age determination enquiry shall be conducted by the Court or the
Board or, as the case may be, by the committee by seeking evidence by
obtaining:-
(a)(i) the matriculation or equivalent certificates, if available; and in
the absence whereof;
(ii) the date of birth certificate from the school (other than a play
school); first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal au-
thority or a panchayat;
11. Under Rule 12 (3) (b), it is specifically provided that only in the
absence of alternative methods described under 12 (3) (a) (i) to (iii), the
medical opinion can be sought for. In the light of such a statutory rule
prevailing for ascertainment of the age of a juvenile, in our considered
opinion, the same yardstick can be rightly followed by considered opinion,
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the same yardstick can be rightly followed by the Courts for the purpose of
ascertaining the age of a victim as well."
The Hon'ble Apex Court has further reiterated this principle
in State of Madhya Pradesh v. Anoop Singh, Criminal Appeal
No. 442 of 2010, decided on 3rd July 2015, observing as follows:
"15. The High Court also relied on the statement of PW-11 Dr. A.K.
Saraf who took the X-ray of the prosecutrix and on the basis of the
ossification test, came to the conclusion that the age of the prosecutrix was
more than 15 years but less than 18 years. Considering this the High Court
presumed that the girl was more than 18 years of age at the time of the in-
cident. With respect to this finding of the High Court, we are of the opinion
that the High Court should have relied firstly on the documents as
stipulated under Rule 12(3)(b) and only in the absence, the medical
opinion should have been sought. We find that the Trial Court has also
dealt with this aspect of the ossification test. The Trial Court noted that the
respondent had cited Lakhan Lal Vs. State of M.P., 2004 Cri. L.J. 3962,
wherein the High Court of Madhya Pradesh said that where the doctor
having examined the prosecutrix and found her to be below 18½ years,
then keeping in mind the variation of two years, the accused should be
given the benefit of doubt. Thereafter, the Trial Court rightly held that in
the present case the ossification test is not the sole criteria for
determination of the date of birth of the prosecutrix as her certificate of
birth and also the certificate of her medical examination had been
enclosed."
Similarly, a Co-ordinate Bench of this Court at Jaipur, in
Tanwar Singh v. State of Rajasthan, S.B. Criminal Appeal No.
526 of 1993, decided on 01.07.2024, has held that in cases in-
volving uncertainty regarding the age of the victim and absence of
corroborative evidence in sexual offences, the benefit of doubt
must enure to the accused. The relevant portion reads as under:
"25. Thus, the offence under section 376 IPC is also not found to be
proved. Therefore, the conviction of the accused appellant for the
offence under Section 376 IPC is not sustainable.
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26. It is a well-settled law that in case of possibility of two views, the
view beneficial to the accused is to be accepted.
27. Consequently, the criminal appeal of accused appellant of
Tanwar Singh is allowed, and his conviction for the offences under sec-
tions 363 and 376 IPC is set aside and he is acquitted from the aforesaid
charges. The accused appellant is on bail, his bail bonds stand
cancelled."
In light of the aforementioned pronouncements and
considering the facts of the present case, this Court finds that the
victim, in her statements recorded under Sections 180 and 183 of
BNSS, has clearly stated that she accompanied the accused of her
own free will and that no force or coercion was exercised upon
her. Furthermore, the certificate issued by the National Institute of
Open Schooling, from which the prosecutrix pursued her
secondary education, records her date of birth as 01.01.2007. The
document relied upon by the prosecution, however, mentions her
date of birth as 19.04.2008, thereby indicating a discrepancy of 1
year, 3 months, and 18 days between the two.
Applying the settled legal principles laid down by the Hon'ble
Apex Court in Mahadeo (supra) and Anoop Singh (supra), and by
a co-ordinate bench of this Court at Jaipur, in Tanwar Singh
(supra) and considering the arguments advanced at bar this Court
finds that there exist a serious dispute regarding the age of the
prosecutrix. The marksheet from class Ist to class VIIth consis-
tently reflect the same date of birth i.e. 26/04/2008, which prima
facie supports the prosecution contentions while the secondary
(matriculation) marksheet reflects the date of birth as
01/01/2007, therefore, this court is of the view that such a dis-
crepancy in the record with respect to the age of the victim must,
at this stage, enure to the benefit of the accused. Considering fur-
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ther that the petitioner has been in custody since the date of his
arrest, and the trial is likely to take a considerable time to con-
clude, this Court, without expressing any opinion on the merits of
the case, deems it just and proper to enlarge the petitioner on
bail.
Consequently, the bail application under Section 483 of the
Bhartiya Nagarik Suraksha Sanhita (corresponding to Section 439
of the Code of Criminal Procedure) stands allowed. It is ordered
that the accused-petitioner, as named in the cause title, who has
been arrested in connection with the above-mentioned FIR, shall
be released on bail, if not wanted in any other case, provided he
furnishes a personal bond in the sum of Rs. 50,000/- along with
two sureties of Rs. 25,000/- each to the satisfaction of the learned
trial court, for his appearance before that Court on each and every
date of hearing and whenever called upon to do so, till the
completion of the trial.
(MUKESH RAJPUROHIT),J
290-mSingh/-
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