SAXENA, J. - (1.) HEARD. Perused the case diary.
(2.) CRIME No 13/9$ was registered at Police Station, Salasar, District Churu against the petitioner Loonkaran on the report dated 6. 3. 1993 lodged by prosecutrix Kumari Bhanwari. It was alleged therein that on 4. 3. 1993 at about 8 p. m. , the petitioner forcibly took her away to Sujangarh in a tempo and thereafter to Rajaldesar, where he committed rape with her thrice. It was further alleged that on the next day, he forcibly took away her silver Payjeb, gave her some rupees and thereafter went away. It was further mentioned in the report that thereupon she came by bus to her Nanihal, where her elder brother also came there in the evening. After investigation a challan has been filed against the petitioner for the offences under section 376, 366a, 363 & 382 I. P. C. Petitioner filed a bail application before the learned Additional Sessions Judge, Ratangarh and claimed that he was a juvenile, below 16 years of age, that a false case has (been fabricated against him and that at the worst the prosecutrix, who is elder to him had accompanied him with her consent and married with him. A School certificate, wherein the petitioner's date of birth was shown as 20. 12. 1977 was also filed. The learned Additional Sessions Judge sent for the record from the school, wherein the same date of birth of the petitioner was written. However, the learned Additional Sessions Judge got his radiological examination conducted by the doctor, who opined that petitioner's age was above 20 years. The learned Addl. Sessions Judge held that as per medical examination report the age of prosecutrix was between 14 to 17 years. He, therefore, rejected petitioner's bail application. Mr. Vijay Bishnoi, the learned counsel for the petitioner has vehemently contended that the petitioner is a juvenile within the meaning of Section 2 (j) of the Juvenile Justice Act, 1986 (in short the Act) and, therefore, he is entitled for bail under Section 18. According to him, the learned Addl. Sessions Judge has committed an error in relying on the medical report about the age of the petitioner and ignoring the school certificate, wherein petitioner's age has been mentioned as 20. 12. 1977. He has also contended that the prosecutrix is above 18 years of age and that no offence under section 366a, 376, 363 & 382 I. P. C. was made out. On the other hand, the learned Public Prosecutor has stoutly opposed this bail petition on the ground that the allegations levelled against the petitioner are of grave nature and that in the electoral list, 1989, the age of Loonkaran petitioner has been shown as 18 years and as such on the date of alleged incident he was definitely above 16 years of age and was not a juvenile. I have given my thoughtful consideration to the rival contentions and also perused the statement of prosecutrix Kumari Bhanwari and her medical examination report. In Bhoop Ram vs. State of U. P. (1), the appellant had produced a school certificate, wherein his date of birth was mentioned as 24. 6. 1960. There was no material before the court to hold that the school certificate did not relate to him and that the entries therein were not correct. The Sessions Judge had relied on the opinion of the Chief Medical Officer that the appellant appeared to be about 30 years of age as on 30. 4. 1987. The Sessions Judge brushed aside the entry of the school certificate on the surmise that it was not unusual for parents to understate the age of their children to one or two years at the time of admission to the school for securing benefits to them in their future years. The Apex Court held that this approach of the Sessions Judge was faulty and that the entries mentioned in the school certificate regarding the age of the appellant should have been relied. Accordingly, it was held that the appellant on the date of the alleged occurrence was below 16 years of age. However, the appellant's conviction under section 302 I. P. C. was maintained, but the sentence awarded to him was quashed. (6) Whether an accused is a juvenile or not on the base of commission of the offence has to be decided by the competent authority after making necessary enquiry under section 32 of the Act. Admittedly, the learned Sessions Judge did not record any evidence and make any inquiry in accordance with law for determining the age of the petitioner and to ascertain as to whether he was a juvenile within the meaning of Section 2 (j) of the Act. Therefore, at this stage in absence of any such inquiry, no definite finding can be given by this Court about the age of the petitioner on the date of the alleged occurrence. The petitioner shall be at liberty to file an application before the competent authority/court in this regard.
(3.) IN the case in hand as per prosecution version, the petitioner had abducted Kumari Bhanwari and took her in a tempo to various places and committed rape with her in a house at Rajaldesar, but the prosecutrix did to raise any alarm. Even after she was left by the petitioner at Rajaldesar, she did not immediately report the matter to the police. Hence, keeping in view all the facts and circumstances of this case, I feel inclined to allow this petition and order that petitioner Loonkaran be released on bail provided he executes his personal bond for an amount of Rs. 10,000/- (Rs. Ten thousand) and furnishes two sound and substantial sureties for an amount of Rs. 5000/- each to the satisfaction of the learned Additional Sessions Judge, Ratangarh for his regular appearance before him in Sessions Case pertaining to Crime No. 13/93, Police Station, Salasar, District Churu on each and every date of hearing and whenever ordered to do so. .;