Madhya Pradesh High Court
Hariram Kushwaha vs The State Of Madhya Pradesh on 7 August, 2020
Author: Mohammed Fahim Anwar
Bench: Mohammed Fahim Anwar
1 MCRC-50900-2019
The High Court Of Madhya Pradesh
MCRC-50900-2019
(HARIRAM KUSHWAHA Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 07-08-2020
Heard through Video Conferencing.
Shri Vishal Daniel, learned counsel for the applicant.
Shri Amit Bhurrak, learned Panel Lawyer for the respondent/State.
Case diary is available with the learned Panel Lawyer. Heard on this second application for bail under Section 439 of the Code of Criminal Procedure filed on behalf of the applicant in connection with Crime No.114/2018 registered at Police Station Khargapur, District Tikamgarh for the offences punishable under Sections 363, 366, 376 and 307 of the Indian Penal Code and Section 3/4 of the Protection of Children From Sexual Offences Act, 2012.
The first bail application of the applicant i.e. M.Cr.C. No.43244/2018 has been dismissed as withdrawn vide order dated 30.11.2018 with liberty to file a fresh application after filing of DNA report by the prosecution.
The case of the prosecution is that, on 11.07.2018 some altercation was taken place in the house of the prosecutrix between her parents and her relatives Mukundi and Lakhan. She was also beaten by them. When the prosecutrix was going to lodge the report of the incidence at Police Station, she was intercepted by the applicant at Mill Road and on the promise of taking her to Police Station had taken her to forest of vicinity where he committed repeated forceful intercourse with her. He also assaulted her by throttling and pelting stone on her. On 12.07.2018 in the morning matter was reported to the Police and the Policeman has taken her from the place of incidence to the hospital where her medical examination was conducted. Dehati Nalishi was recorded. Her dying declaration was also recorded by an Executive Magistrate. On that basis, crime under the aforementioned offence has been registered against the applicant.
Signature Not Verified SANLearned counsel for the applicant submitted that the applicant has not Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2020.08.07 17:07:14 IST 2 MCRC-50900-2019 committed any offence. It is further submitted that the statement of the prosecutrix has been recorded before the trial Court. There are material discrepancies, omissions and contradictions in her statement. The version of Dehati Nalishi was not corroborated with the version of dying declaration. It is also submitted that due to the outbreak of Coronavirus (Covid-19) disease recording of evidence of remaining witnesses is not possible in near future. It is also submitted that the applicant is a permanent resident of the address shown in the application. There is no chance of his absconding or tampering with the witnesses. He is ready to furnish adequate surety and shall abide by all the directions and conditions which may be imposed upon him. He is in custody since 12.07.2018. It is also submitted that after several opportunities DNA report is not furnished by the FSL to the concerning Police Station inspite of directions of this Court. In view of the aforesaid, prayer has been made to enlarge the applicant on bail.
Per-contra, learned Panel Lawyer for the respondent-State has vehemently opposed the bail application.
It is true that several opportunities have been given to the prosecution to bring the DNA report on record but the same has not yet been received. The first bail application of the applicant i.e. M.Cr.C. No.43244/2018 has been dismissed as withdrawn vide order dated 30.11.2018 with liberty to file a fresh application after filing of DNA report by the prosecution. On the request of the learned counsel for the applicant this application is going to be considered with the presumption that the said DNA report will not favour the prosecution, until and unless it is received and brought on record.
So far as the merits of the case is concerned, prosecutrix has consistently named the applicant in Dehati Nalishi and in her statements recorded under Sections 161 and 164 of Cr.P.C. In the dying declaration although she has not narrated the name of the applicant but she has specifically narrated the place where the applicant used to reside, which is Signature Not Verified SAN Nachanwara. Perhaps the concerning Officer (Tahsildar) has mistakenly not Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2020.08.07 17:07:14 IST 3 MCRC-50900-2019 recorded the name of applicant Hariram Kushwaha in the dying declaration.
At this stage, it is not necessary to consider the merits and demerits of the crime as well as the evidence collected on record; however, looking to the age of the prosecutrix and gravity of offence, I am of the considered vide that it not a fit case to grant bail to the applicant.
Consequently, this second application for bail under section 439 of the Code of Criminal Procedure filed on behalf of applicant, stands dismissed.
(MOHD. FAHIM ANWAR) JUDGE taj Signature Not Verified SAN Digitally signed by TAJAMMUL HUSSAIN KHAN Date: 2020.08.07 17:07:14 IST