ORDER :

Kuldeep Mathur, J. - This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.03/2022, registered at Police Station Matoda, District Jodhpur, for offences under Sections 365 , 342, 376(2)(N), 376D & 384 IPC.

2. Learned counsel for the petitioner submitted that a false case has been foisted against the petitioner. Learned counsel further submitted that there are major discrepancies in the prosecution story. Learned counsel drew the Court's attention towards the statement of Mukesh Lahoti recorded under Section 161 Cr.P.C wherein he stated that on 07.01.2022, he was at his home and his father was informed by Baya that a girl had climbed the school boundary and went inside. Mukesh along with his father, Shankarlal went to the school and found wife of Behrupiya who told them that her husband had gone to the bathroom but the bathroom was locked from inside. Thereafter, Shankar Lal peeked into the bathroom from its roof and saw that the girl was sitting inside the bathroom. Upon being asked to open the door, the girl unlocked the door and stated herself to be daughter of Kumbharam Godara and sister of Jagdish whereupon Mukesh Lahoti called Jagdish to inform about his sister's whereabouts who came to the spot and took her with him.

3. Learned counsel vehemently submitted that a different version of prosecution story has been narrated in the FIR lodged by the brother of the prosecutrix, stating inter alia that the girl was found in an unconscious state in the bathroom. Learned counsel further drew court's attention towards the statement of prosecutrix recorded under Section 164 Cr.P.C., pointing towards major discrepancy that she stated the date when she left the home to be 06.01.2022 which completely shakes the prosecution story. Learned counsel lastly submitted that the prosecutrix in her statements under Section 164 , stated that the accused-petitioner with co-accused Magraj and Girdhari Ram had been sexually assaulting her for last 1-2 years which was not disclosed even to the family members clearly indicating towards a consensual relationship between them.

4. On the strength of these submissions, learned counsel implored the court to accept the present application under Section 439 Cr.P.C. and enlarge the petitioner on bail.

5. Learned Public Prosecutor and learned counsel for the complainant jointly submitted that there are clear allegations of forceful sexual assault levelled upon the petitioner by the prosecutrix in her statements under Sections 161 and 164 Cr.P.C. The prosecutrix in the statements unequivocally stated that present petitioner, her teacher along with co-accused had been sexually assaulting her under coercion for last 1-2 years. It was thus prayed that looking to the seriousness of the offence, indulgence of bail should not be granted to the accused by this Court.

6. Heard learned counsel for the parties and perused the material available on record.

7. From the perusal of record, it is clear that present petitioner is aged about 35 years and working as teacher in the school where prosecutrix studied, who has just turned major and is in her late adolescent years.

8. This Court is of the opinion that considering the teacher-student relation and the age difference between the accused-petitioner and prosecutrix, it can be presumed that the accused-petitioner was in a position to control or dominate over the will of the victim. In such a situation, it cannot be said that the prosecutrix could freely consent to advances made by the accused-petitioner or by the co-accused.

9. This Court after going through the charge sheet filed by the Investigating Agency has come to conclusion that there is a