HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Appeal No. 826/2022

Jakar Khan @ Yakar Khan S/o Kalu Khan, Aged About 54 Years,

B/c Musalman R/o 507 Head (01 Km) Ps Chhattargarh Dist.

Bikaner

(At Present Lodged In Central Jail Bikaner)

----Appellant

Versus

1.

State Of Rajasthan, Through Pp

2.

Smt. Resham W/o Rameshwar, R/o 507 Head (01 Km) Ps

Chhattargarh Dist. Bikaner

----Respondents

For Appellant(s)

:

Mr.Anil Biden.

For Respondent(s)

:

Mr.Vikram Sharma, P.P.

HON'BLE MR. JUSTICE KULDEEP MATHUR

JUDGMENT

19

/07/2023

The instant appeal under Section 14A(2) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act has

been filed by the appellant against the order dated 21.5.2022

passed by learned Special Judge, Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act Cases, Bikaner in Cr. Case

No.934/2022, whereby the bail application filed by the appellant,

who has been arrested in connection with FIR No.34/2022

registered at Police Station Chhattargarh, District Bikaner, for

offences under Sections 376(2)(J)(L), 506, 450 IPC, 3(1)(s), 3(1)

(W)(i), 3(2)(v), 3(2)(va) of Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, has been rejected.

(2 of 5)

[CRLAS-826/2022]

As per prosecution case, on 08.03.2022, the complainant

lodged an FIR No. 34/2022 at P.S. Chattargarh, District Bikaner

with the allegation that the petitioner sexually assaulted and

raped her daughter. The prosecutrix who is a mentally and

physically challenged person was 4-5 months pregnant at the time

of the lodging of FIR. On being asked by her mother, the

prosecutrix with the help of sign language, divulged that the

petitioner repeatedly sexually assaulted and threatened her, about

6 months prior to the lodging of FIR.

Learned counsel for the petitioner submitted that the

petitioner has been falsely implicated in the present case and is

languishing in judicial custody since 10.03.2022.

To substantiate the aforesaid contention, learned counsel for

the petitioner drew the attention of the court towards the fact that

the learned trial Court on 04.05.2023, closed the prosecutrix cross

examination owing to her mental incapacity and therefore,

reliance on her statements recorded under Section 161 and 164

CrPC, wherein she has not named the petitioner, cannot be placed

to show involvement of the petitioner in the present case. Learned

counsel further contended that the prosecutrix suffers from mental

and physical disability who is unable to differentiate between right

and wrong.

Learned counsel further contended that

since

the

complainant (mother of the prosecutrix) PW-1, in her statements

before the competent criminal court dated 04.05.2023 has turned

hostile, there is no apprehension of the petitioner

(3 of 5)

[CRLAS-826/2022]

influencing/tampering the witnesses. The trial of the case is likely

to consume sufficiently long time.

On these grounds, he implored the Court to enlarge the

petitioner on bail.

Per contra, learned Public Prosecutor has opposed the bail

application and submitted that the petitioner and prosecutrix are

aged about 54 years and 25 years respectively. The petitioner can

thus, be said to be in a position to dominate or influence the will

of the prosecutrix who suffers from 60 per cent permanent

disability as per the disability certificate annexed to the charge

sheet. Learned Public Prosecutor invited the attention of the court

towards the medical report which shows that the prosecutrix was

19 weeks pregnant at the time of lodging of FIR, thereby proving

that the act of sexual assault took place.

Learned Public Prosecutor further drew the attention of the

court towards the statements of prosecutrix recorded under

Section 161 and 164 CrPC, with the help of special educator and

submitted that she has named the petitioner. Learn