Madhya Pradesh High Court
Waheed Khan vs The State Of Madhya Pradesh Thr on 17 January, 2017
CRA-1430-2016
(WAHEED KHAN Vs THE STATE OF MADHYA PRADESH THR)
17-01-2017
Shri Rajesh Shukla, learned counsel for the appellant.
Shri Rajendra Singh Yadav learned PP for the respondent/state.
Shri N.S.Parmar, learned counsel for the complainant.
Heard on I.A.No.494 of 2017 an application under section 301 (2) of Cr.P.C. On due consideration, the application is allowed and the complainant is permitted to assist Pp in the matter.
This appeal has been filed by the appellant under section 14-A (2) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act being aggrieved with the order passed by Special Judge Atrocities Gwalior in Case No.273 of 2016 on 23.12.2016 whereby, the application filed by the appellant under section 439 of Cr.P.C has been rejected.
Brief facts of the case are that the complainant has lodged a report that his daughter aged 17 years has gone to school but did not return. During investigation, the victim was recovered. Her statement was recorded wherein, she disclosed that Salman is residing near her house. He told her that he would marry with her and keep her happy. Thereafter, he took her to Mohna in the house of Bhaiyyan Khan where Waheed and Kale met. Salman told him that he brought this girl and he would marry with her, then, they asked him to take her to Indore. Thereafter, Waheed and his son Kale Khan left her at bus stand Mohna from where, Salman took her to Peethampura in the house of Bano who asked Salman to leave her. Thereafter, Salman took her to Panihar. Salman has also kept her for 20-25 days and committed sexual intercourse with her against her will. In her statement under section 164 of Cr.P.C, she has stated that she was going to Bank. Salman met her and give her some Prasad, then, she became unconscious and Salman took her to Mohna. Thereafter, after taking tea and lunch, Salman took her to Indore. No allegation has been made against applicant Waheed Khan in this statement under section 164 of Cr.P.C. On the basis of aforesaid allegations, Crime No. 158 of 2016 was registered at PS Panihar district Gwalior for the offences under section 363, 366 and 120B of IPC and 3 (2) (5)A of SC ST Act and 7/8 of POCSO Act.
It is submitted by learned counsel for the appellant that the trial court has erred in dismissing the application for grant of bail. The victim has not made any allegation against the applicant in her statement under section 164 of Cr.P.C. There is no allegation against the appellant that he took her or committed sexual intercourse with her. The appellant is in custody since 9.12.2016. Hence, the learned trial court has erred in rejecting the application for bail.
Learned PP and counsel for the complainant on the other hand have supported the order and prayed for rejection of the appeal.
I have considered the submissions and perused the case diary. As per school record, the date of birth of victim is 23.10.2000. In the missing report, age of the victim has been mentioned as 17 years. As per medical report of victim, her secondary sexual characters were well developed. No definite opinion has been given regarding commission of rape with her. Though in the statement under section 161 of Cr.P.C the victim has stated that Waheed and her son left her in their vehicle at Mohna bus stand but no allegation has been made by the victim in her statement under section 164 of Cr.P.C.
Considering the aforesaid facts and the fact that the appellant is in custody since 9.12.2016, there is no likelihood of their absconsion and the fact that the charge sheet has already been filed, the impugned order deserves to be set aside. Consequently, the appeal is allowed. It is directed that the appellant shall be released on bail on his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety each in the like amount to the satisfaction of Trial Court. This order will remain operative subject to compliance of the following conditions by the appellant:-
The appellant will comply with all the terms and conditions of the bond executed by him;
The appellant will cooperate in the investigation/trial, as the case may be;
The appellant will not indulge himself in extending 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 to the Police Officer, as the case may be; The appellant shall not commit an offence similar to the offence of which he is accused;
The appellant will not seek unnecessary adjournments during the trial; and The appellant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.
A copy of this order be sent to the Court concerned for compliance.
C.c. as per rules.
(D.K. PALIWAL) JUDGE Rks