The court determined that the allegations of sexual assault were exaggerated and lacked evidence, making the applicant's conviction improbable.

Order

08/01/2024

1. The present second bail application has been filed by the applicant under Section 439 of the Cr.P.C. seeking regular bail in connection with FIR No. 0335/2023 registered at Police Station Shergarh, District Jodhpur Rural for the offences under Sections 342 , 376 of Indian Penal Code , 1860 and Section 67 of Information Technology Act , 2008.

2. The first bail application filed by the applicant was dismissed as not pressed by this Court vide order dated 09.11.2023 in S.B. Cr. Misc. Bail Application No. 13883/2023.

3. Learned counsel for the applicant argued that going by the contents of the First Information Report and even by the prosecutrix’s statement recorded under Sections 161 and 164 Cr.P.C., no allegation of sexual assault has come on record. He submitted that even in her statement, the prosecutrix has alleged that the applicant was inappropriately behaving with her (kissing) when she came out of unconsciousness and so far as allegation of sexual assault is concerned, she has attributed the same on the basis of purported version of the present applicant himself. He argued that the applicant cannot be convicted for the offence of rape.

4. Learned Public Prosecutor vehemently opposed the bail application.

5. Heard learned counsel for the parties and perused the record.

6. If the contents of First Information Report and prosecutrix's statgement recorded under Section 164 Cr.P.C. are read, it is clear that she has only seen inappropriate behaviour of the applicant (kissing) and so far as sexual assault is concerned, she has averred that the same was done when she was unconscious. In the FIR and in her statement, she has said that Deva Ram has prepared a videography of the sexual assault and the same has been sent to her relative, but surprisingly enough, in spite of notice given by the investigating officer to produce such video, the same has not been produced, for which, the investigating officer has dropped the charges for the offence under Section 67 of Information Technology Act , 2008.

7. In view of the aforesaid fact situation, in the prima-facie opinion of this Court, the allegation of sexual assault turns out to be an exaggeration. When the so called video was not found, there exists hardly any evidence to prove the commission of rape. The applicant's conviction under Section 376 of IPC is highly improbable.

8. In view of the aforesaid and considering the fact that the applicant is behind the bars since 23.10.2023, this Court deems it just and proper to grant bail to the accused-applicant under Section 439 Cr.P.C.

9. Consequently, the bail application filed under Section 439 Cr.P.C. is allowed. The applicant Devaram S/o Shri Hemaram Alias Tikuram arrested in connection with the FIR No. 0335/2023 registered at Police Station Shergarh, District Jodhpur Rural shall be released on bail on his furnishing personal bond in the sum of Rs.50,000/- and two sureties of Rs.25,000/- each to the satisfaction of the trial Court.

10. Applicant shall be required to appear before that Court on all dates of hearing and as and when called upon to do so.

11. Needless to mention that the above observations made by this Court are on the basis of material so far produced before the Court. These are only prima-facie observations and the same shall however, not come in the way of the trial Court to take independent view of the matter, based on ocular and oral evidence, while finally deciding the case.