S.483 BNSS Bail Granted: Rajasthan HC Cites Completed Probe & Non-Recovery of Alleged Obscene Photos in IPC S.376(2)(n) Case - 2024-11-11

Rajasthan High Court Grants Bail in Rape Case, Cites Lack of Evidence Recovery and Completed Investigation

Jodhpur, Rajasthan – The High Court of Rajasthan, Jodhpur Bench, presided over by Mr. Justice Kuldeep Mathur , on November 11, 2024, granted bail to Gunesh Ram @ Ganesh , who was arrested in connection with allegations including repeated rape and house-trespass. The court's decision hinged on the completion of the investigation and the investigating agency's failure to recover crucial evidence, such as alleged obscene photographs used for blackmail.

Case Background: Allegations of Repeated Assault and Blackmail

The petitioner, Gunesh Ram @ Ganesh , was arrested following F.I.R. No.93/2023 registered at Police Station Gura Endla, District Pali. He faced charges under Sections 450 (house-trespass in order to commit offence punishable with imprisonment for life), 376(2)(n) (committing rape repeatedly on the same woman), and 506 (criminal intimidation) of the Indian Penal Code (IPC).

According to the prosecution, the prosecutrix, described as a "matured married woman," alleged that the petitioner sexually assaulted/raped her at knifepoint approximately one and a half months before she lodged the FIR. She further stated that ten to fifteen days after this incident, the petitioner called her to a lodge in Pali and again subjected her to forcible sexual assault/rape. The prosecution also claimed the petitioner captured obscene photographs of the prosecutrix and subsequently, by threatening to make them viral, called her to a lodge in Jodhpur and committed further sexual assaults.

Petitioner's Plea: False Implication and Consensual Past

Learned counsel for the petitioner argued that his client had been falsely implicated. It was submitted that the petitioner and the prosecutrix were, in fact, in a consensual physical relationship. The defense contended that when their relationship soured, the prosecutrix lodged a false criminal case.

A key argument from the defense was the non-recovery of critical evidence by the Investigating Agency. "Neither the knife which was allegedly used by the petitioner to threaten the prosecutrix when she was subjected to forcible sexual assault/rape for the first time nor her obscene photographs which were allegedly captured by the petitioner have been recovered by the Investigating Agency," counsel submitted.

The petitioner’s counsel also highlighted that he has been in judicial custody since June 6, 2024, the investigation against him is complete, and the trial is likely to take a considerable amount of time.

Prosecution's Opposition

The learned Public Prosecutor vehemently opposed the bail application, though the judgment does not detail specific grounds for this opposition beyond the inherent seriousness of the charges.

Court's Rationale for Bail

After hearing arguments from both sides and perusing the material on record, Mr. Justice Kuldeep Mathur noted several points leading to the decision to grant bail.

The Court observed, "Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that as per the prosecutrix, the petitioner by threatening her to viral her obscene photographs has committed sexual assault/rape upon her on multiple occasions however, during the course of investigation, the Investigating Agency has not recovered any such photographs."

Furthermore, the Court pointed out, "As a matter of fact, the petitioner has not even been charge-sheeted for the offences under the IT Act, 2000," which might have been expected if the allegations of capturing and threatening with obscene photographs were substantiated with recovered material.

The Court also considered the stage of the proceedings: "This Court also prima facie finds that the investigation against the petitioner has already been completed and the prosecution has not shown apprehension of the petitioner influencing the prosecutrix or fleeing away from justice or tampering with the evidence, in case he is enlarged on bail."

Emphasizing that its observations were prima facie and "without expressing any opinion on merits/demerits of the case," the High Court found grounds to enlarge the petitioner on bail.

The Decision

The High Court allowed the bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Gunesh Ram @ Ganesh is to be released on bail, provided he is not wanted in any other case, upon furnishing a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each to the satisfaction of the learned trial court. He is required to appear before the trial court on every hearing date and whenever called upon until the trial's completion.

This judgment underscores the judiciary's role in balancing the liberty of an individual with the interests of justice, particularly considering factors like the completion of investigation and the strength of evidence presented at the bail stage.