HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Bail No. 1217 / 2018
Sahiram S/o Shri Lekhram, Aged About 38 Years, B/c Vishnoi, R/o
Vishnoiyon Ka Bass, Alai, Police Station Sribalaji, Tehsil and
District Nagaur (Raj.)
—-Petitioner
Versus
State of Rajasthan
—-Respondent
__
For Petitioner(s) : Mr. Mahaveer Bishnoi
For Respondent(s) : Mr. Deepak Choudhary, P.P.
Mr. Nishant Bora
Mr. Ashok Bibhu, S.I., Police Station Sri
Balaji, District Nagaur
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Order
26/02/2018

Heard.

The instant bail application under Section 438 CrPC has

been moved by petitioner accused Sahiram apprehending arrest in

connection with FIR No.111/2016 registered at Police Station Sri

Balaji. The FIR came to be lodged by the complainant Sushri ‘S’,

wife of Subhash Bishnoi at the Police Station Sri Balaji on

08.08.2016. The lady alleged in the FIR that she was married to

Subhash Bishnoi in her childhood. For the last four years, she has

been living at her matrimonial home. Her husband was working in

RAC. She used to live at her matrimonial home with her father-

in-law and mother-in-law. Her mother-in-law recently passed

away about 20-25 days before lodging of the FIR. She alleged
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that her husband was not maintaining any kind of relations with

her for last one and half years. About a year ago, she had gone to

the ‘bada’ for attending the nature’s call and spotting her alone,

accused Kailash took advantage and subjected her to rape. He

also snapped her indecent photographs and threatened that if the

incident was disclosed to anybody, the photographs would be

made viral. Three months later, while her mother-in-law had gone

to her paternal home; her father-in-law had gone to attend a

marriage and her husband was at Jodhpur, taking advantage of

this situation, the present petitioner and Subhash, who works in

Police, came there and showed her the photographs snapped by

Kailash. She was also threatened on gunpoint and the present

petitioner as well as Subhash subjected her to rape one after the

other. They also snapped pictures of each other having sexual

relations with the lady and then threatened her and went away.

Thereafter, Kailash, Sahi Ram and Subhash often subjected her to

rape. In the month of January, just after she had completed her

periods, Sahiram subjected her to rape, on which she conceived.

After two months she told this fact to her sister Kavita, who was

married to her Jeth Rajaram. Kavita warned her that in case she

discussed with anybody about the incident, she might be turned

out of the matrimonial home. When she became seven months

pregnant, she somehow mustered courage to tell her husband of

the incident, upon which, the FIR came to be lodged.

Initially, the FIR was registered against Sahiram,

Kailash and Subhash. However, after conducting thorough

Investigation, the Investigating Officer has reached to a cetegoric
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finding that accused Subhash and Kailash had been falsely

implicated in this case. The DNA report of the foetus carried by

the prosecutrix has matched with the petitioner’s DNA.

Apprehending arrest in connection with the above FIR, the

petitioner approached the Court of Sessions Judge, Nagaur for

grant of pre-arrest bail by filing an aplication under Section 438

CrPC, which came to be rejected on 18.01.2018 and hence, this

pre-arrest bail application.

Mr. Bishnoi, learned counsel representing the petitioner,

urges that even if the case set up in the belated FIR lodged by the

complainant prosecutrix is accepted to be true on the face of

record, manifestly, the relations between her and the petitioner

were consensual. She concealed the fact of the alleged sexual

assault from the husband, father-in-law and mother-in-law. Even

when she shared this information with her sister Kavita just two

months after the incident, she was advised not to disclose it so as

to avoid the consequence of being turned out from the

matrimonial home. He urges that these circumstances give clear

indication that the prosecutrix was having an extramarital affair

with the present petitioner and tried to delay the disclosure

thereof as long as possible. However, when finally her pregnancy

started to reflect in appearance, she was left with no option, but

to tell her husband about the relationship and then the entirely

concocted story was designed so as to somehow or the other, save

the family from ignominy. He, thus, urges that the petitioner

deserves to be granted bail.

Per contra, learned Public Prosecutor and Mr. Nishant
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Bora, learned counsel representing the complainant, vehemently

opposed the submissions advanced by the petitioner’s counsel.

Nevertheless, learned Public Prosecutor candidly

conceded that the Investigating Officer has not found the accused

Kailash, who is alleged to have made first assault on the

complainant, and Subhash involved in the case. It is undisputed

that when the complainant shared the information with her sister,

who was also married in the same family, she was advised to keep

her mouth shut, because the disclosure would put her matrimonial

ties in danger. Admittedly, the complainant’s husband was not

having any kind of physical relations with her. Pregnancy of the

complainant was bound to show after four to five months and

thus, silence of the complainant in reporting the matter is clearly

indicative of a story entirely different from what has been

portrayed in the FIR. These facts clearly indicate that the

prosecutrix was in some kind of consensual relationship with the

petitioner, which she was trying to conceal from her family

members.

In this background and having regard to the entirety of

facts and circumstances as available on record and upon a

consideration of the arguments advanced at the Bar, this Court is

of the opinion that it is a fit case for grant of pre-arrest bail to the

petitioner under Section 438 Cr.P.C.

Accordingly, the bail application is allowed and it is

directed that in the event of arrest of petitioner Sahiram S/o shri

Lekhram in connection with F.I.R. No.111/2016 registered at

Police Station Sri Balaji, District Nagaur, the petitioner shall be
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released on bail; provided he furnishes a personal bond in the sum

of Rs.50,000/- along with two sureties of Rs.25,000/- each to the

satisfaction of the concerned Investigating Officer/S.H.O. on the

following conditions :-

(i) that the petitioner(s) shall make himself/herself/themselves
available for interrogation by a police officer as and when
required;

(ii) that the petitioner(s) shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing
such facts to the court or any police officer; and

(iii) that the petitioner(s) shall not leave India without previous
permission of the court.

(SANDEEP MEHTA), J.

Pramod