Deepak Sankhla vs State on 8 September, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Bail No. 6345 / 2017
Deepak Sankhla s/o Late Shri Himmatsingh Sankhla, by caste
Mali, aged 31 years, resident of Sankhla Bhawan, Outside
Chandpole, Police Station Soorsagar, Jodhpur.
(At present lodged in Central Jail, Jodhpur).

—-Petitioner
Versus
State of Rajasthan

—-Respondent
__
For Petitioner(s) : Mr. Mahesh Bora, Senior Advocate with Mr.
Arun Kumar.

For Respondent(s) : Mr. Ashok Upadhyay, Public Prosecutor.
For Complainant(s): Mr. Vikas Gaur.

__

HON’BLE MR. JUSTICE P.K. LOHRA
Order
08/09/2017

Petitioner, Deepak Sankhla, facing imputations for offences

under Section 376(2)(n) and 384 IPC, pursuant to investigation

into FIR No.127/17, Police Station Chopasani Housing Board,

Jodhpur, has laid this bail application under Section 439 Cr.P.C.

During investigation, considering the gravity and magnitude

of offences slapped against petitioner being cognizable and non-

bailable, he was arrested on 27 th of May, 2017. Upon completion

of investigation, chargesheet is filed against the petitioner for the

said offences.

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Learned Senior Advocate, Mr. Mahesh Bora, submits that

petitioner has been falsely implicated in the matter inasmuch as

from a bare reading of FIR no offence is made out against him.

Learned Senior Counsel has submitted that petitioner and

complainant had courtship for quite some time which led to

developing consensual relationship but after the break-up of that

relationship and subsequent marriage of the petitioner,

complainant has lodged FIR with inordinate delay for wrecking

personal vengeance. Learned Senior Counsel would contend that

in the event of consensual relationship per se offence of ravishing

prosecutrix by the petitioner is not made out. Learned Senior

Counsel has also argued that mere resile of the petitioner from

promise to marry complainant after developing physical

relationship, offence under Section 376(2)(n) IPC is not made out.

It is argued by learned Senior Counsel that though in the FIR

complainant has insinuated the petitioner for blackmailing her

after taking obscene photographs but during investigation no such

objectionable material has come to the fore further strengthens

petitioner’s contention that entire story is based on fabricated and

concocted facts. Learned Senior Counsel has also argued that a

bare reading of statement of the complainant under Section 164

Cr.P.C. makes it abundantly clear that she has projected an

embellished version and per se her revelations are not inspiring

confidence. While referring to offence under Section 384 IPC

slapped against the petitioner, it is submitted by learned Senior

Counsel that requisite ingredients for constituting offence of

extortion are conspicuously missing in the matter. Lastly, learned
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[CRLMB-6345/2017]

Senior Counsel would urge that after investigation charge-sheet in

the matter has already been filed, therefore, it would not be

appropriate to keep the petitioner under further incarceration. In

support of his arguments, learned Senior Counsel has placed

reliance on following legal precedents:

(1) Prashant Bharti Vs. NCT of Delhi (AIR 2013 SC
2753)
(2) Anup K Pal Vs. State of Rajasthan Anr. (2015 (3)
Cr.L.R. (Raj.) 1491)
(3) Order dated 6th of September 2017 passed in S.B.
Criminal Misc. Petition No.1106/16 (Baldev Gora
Vs. State of Rajasthan Anr.

Per contra, learned Public Prosecutor Mr. Ashok Upadhyay

has vehemently opposed bail application of the petitioner. It is

submitted by learned Public Prosecutor that petitioner has

exploited the complainant on the false pretext of marrying her and

therefore keeping in view serious delinquencies for which he is

chargesheeted, grant of bail in the matter is not desirable.

Learned counsel for the complainant, while reiterating

submissions of learned Public Prosecutor, has urged that petitioner

has sexually exploited the complainant by alluring her with

promise of marriage, and therefore, offence under Section 376 IPC

is clearly made out against him. It is also submitted by learned

counsel for the complainant that if the bail plea of the petitioner is

examined on the touchstone of relevant grounds and

considerations for grant of bail, then per se no case is made out in

his favour for its favourable disposition. In support of his

submissions, learned counsel for the complainant has placed

reliance on these judgments:

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[CRLMB-6345/2017]

(1) Y.S. Jagan Mohan Reddy Vs. C.B.I. [(2013) 3 SCC
(Cr.)552]
(2) State of U.P through CBI Amarmani Tripathi
[(2005) 8 SCC 21]
(3) C.B.I. Vs. Vijay Sai Reddy [(2013) 7 SCC 452].

. I have given my thoughtful considerations to the arguments

advanced by learned counsel for the parties and scanned the

materials available on record.

At the outset, it may be observed that at the stage of

consideration of bail application of an accused, prime concern of

the Court is to examine the allegations and the evidence which

has surfaced during investigation. It goes without saying that

while examining bail plea of an accused person, Court is not

expected to embark on merits of the case but for examining prima

facie the available material. While it is true that petitioner is

castigated by the complainant for offence of committing rape

repeatedly, but then in her statements recorded under Section

164 Cr.P.C. she has very candidly stated that she had

acquaintance with the petitioner since April 2016 which eventually

culminated into physical relationship. Although she has made a

specific allegation in her statements that she was offered cold

drink and after consuming the same she became intoxicated and

taking advantage of her semi-consciousness petitioner ravished

her but her statements also fortify that thereafter physical

relationship between them continued unabatedly. Undeniably, at

the behest of complainant, the incident of April 2016 was not

reported to police and further revelation of the complainant that
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[CRLMB-6345/2017]

later on physical relationship continued per force as the petitioner

took her obscene photographs is prima facie not discernible from

the evidence and other materials collected during investigation. It

is also noteworthy that in the charge-sheet, petitioner is neither

slapped with an offence under the I.T. Act nor for blackmailing her.

The first incident of alleged offence of rape is of April 2016 and

undeniably FIR in the matter has been lodged after lapse of more

than a year, i.e., on 26th of May 2017, further persuaded this Court

to believe that in continuing physical relationship complainant’s

consent was there, may be in a subtle manner. There remains no

quarrel that when petitioner and complainant started courtship,

both were mature inasmuch as petitioner was in his early thirties

whereas complainant was in her late thirties, therefore, looking to

the age of the complainant also, it appears prima facie

unthinkable that he alone was responsible for their physical

relationship or forced her for physical relationship. True it is that

there were financial transactions between complainant and the

petitioner but sans prima facie evidence that petitioner put the

complainant in fear of some injury and thereby dishonestly

induced her to deliver any property or valuable security, it is

difficult to comprehend that solely on the basis of such

insinuations petitioner is liable to be kept in custody.

Upon examining the matter in light of legal precedents on

which learned counsel for the parties have placed reliance and

taking into account the entire fact scenario, I am unable to

subscribe this view that in case petitioner is bailed out, it would

not be possible to secure his presence at trial. It may be
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[CRLMB-6345/2017]

observed that in absence of any reasonable apprehension that

witnesses at the behest of petitioner can be tampered with or

larger interests of public/State would be put to jeopardy, grounds

for thwarting his bail plea per se appears to be irrelevant or facile.

Moreover, no other criminal antecedents of the petitioner are

discernible from the charge-sheet so as to cast a shadow of doubt

on his character. Therefore, in totality, while refraining to make

any comments on merits and clarifying that the observations

made supra shall have no ramification on the trial of case, in the

backdrop of facts and circumstances of the case, I feel persuaded

to enlarge the petitioner on bail.

Accordingly, the bail application under Section 439 Cr.P.C. is

allowed and it is ordered that accused-petitioner, Deepak Sankhla

s/o Late Shri Himmatsingh Sankhla, arrested in connection with

FIR No.127/17, Police Station Chopasani Housing Board, Jodhpur,

may be released on bail; provided he furnishes a personal bond of

Rs.50,000/- with two sureties of like amount to the satisfaction of

learned trial Court with the stipulation to appear before that Court

on all dates of hearing and as and when called upon to do so.

(P.K. LOHRA)J.

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