The main legal point established is that in considering a bail application, the court may take into account the lack of specific allegations, evidence, and the likelihood of a lengthy trial.

JUDGMENT

Devendra Kachhawaha, J. - In wake of onslaught of COVID-19, as per guidelines, lawyers have been advised to refrain from coming to the Courts, therefore, hearing of the matter is being taken up only through video conferencing.

2. The present bail application has been filed on behalf of the petitioner under Section 439 Cr.P.C. in connection with FIR No. 177/2021, registered at Police Station Aburoad Sadar, District Sirohi, for the offence under Section 376 IPC.

3. Heard learned counsel for the petitioner appearing through video conferencing and learned Public Prosecutor, present-in-person so also the counsel for the complainant through video conferencing. Perused the material available on record.

4. Learned counsel appearing for the petitioner states that initially the complaint was filed against the accused petitioner as well as family members of the accused petitioner, in total 5 persons but the charge-sheet was filed only against the petitioner; and as per the evidence, no offence is made out against the family members of the accused petitioner for offences under Sections 384, 120B & 166 IPC. It is submitted that the prosecutrix 'S' is a married lady and a divorce petition is pending between Ramlal and the prosecutrix and it was assured that the marriage of the accused petitioner will be solemnised with the prosecutrix, however in between, dispute was raised for demand of Rs. 4 lacs by the prosecutrix and then the same was denied by the accused petitioner and his family members. It is further submitted that the prosecutrix 'S' often came to the house of the accused petitioner and sometime resided at the house of the petitioner, even she attended the marriage of sister of the petitioner as a family member, name of the prosecutrix alongwith petitioner is also mentioned in the invitation card which is available on record. It is also submitted that there is no allegation of rape in the statement recorded under Section 161 Cr.P.C. of the prosecutrix; as per page no. 58 of the charge-sheet, place of incident was not verified by the complainant and as per page no. 59, the clothes wore by the complainant at the time of incident were not given to the police and the medical report also does not support the prosecution story. Learned counsel for the petitioner has placed on record photocopies of the photographs along with the bail application which shows that the accused petitioner and the prosecutrix, faces touching each other. It is also submitted that the complaint was lodged after delay of six months. Lastly, it is urged that it is a matter of consent and the charge sheet has already been filed and trial will take sufficiently long time, therefore, benefit of bail may be granted to the accused-petitioner.

5. On the contrary, learned Public Prosecutor and the counsel for the complainant have vehemently opposed the bail application of the accused-petitioner and stated that at para no. 4 of the complaint, allegation was levelled by the prosecutrix of sexual harassment by the accused petitioner and at para no. 5, it is also mentioned that her child was also kidnapped and therefore, in above circumstances, the accused petitioner may not be enlarged on bail.

6. Having regard to the facts and circumstances of the case, particularly the photographs, invitation card available at record and the fact that there is no specific allegation of rape in complaint as well as in the statement recorded under Section 161 Cr.P.C., it is also not mentioned that how many time rape was committed on her and what was the first date and the last date of committing rape; and in the statement recorded under Section 164 Cr.P.C., it is stated that she has resided at the house of the accused petitioner, photocopy of the photographs of the accused petitioner with the complainant available on record, prima facie matches with the copy of the photograph available on application moved under Section 13 of the Hindu Marriage Act, available at page no. 64 of the charge