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Madhya Pradesh High Court

Shyamakant Sharma vs The State Of Madhya Pradesh on 1 December, 2017

          THE HIGH COURT OF MADHYA PRADESH
                    MCRC-17914-2017




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             (SHYAMAKANT SHARMA Vs THE STATE OF MADHYA PRADESH)




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  Jabalpur, Dated : 01-12-2017

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  Shri Sankalp Kochar, counsel for the petitioner.
  Shri Akhilesh Singh, Government Advocate for the
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  respondent/State.

hy Heard on this third application for bail under section 439 of ad the Code of Criminal Procedure filed on behalf of petitioner M Shyamakant Sharma in Crime No.06/2017 registered by P.S. Harpalpur, District-Chhatarpur under Section 376 of the of Indian Penal Code read with Section 5/6 of the Protection of rt Children from Sexual Offences Act, 2012.

ou His first application for same relief had been dismissed by this Court by order dated 25.04.2017 passed in C M.Cr.C.No.2006/2017 as withdrawn. His second application h for bail was dismissed by order dated 17.07.2017 passed in ig M.Cr.C.No.9942/2017 as withdrawn. Therefore, this third H application is bieng decided on merits. As per the prosecution case, first informant Sunil Mishra runs a Middle School at Harpalpur. When he got admission in a college at Gwalior, he associated petitioner Shyamakant Sharma as partner in the venture. Two minor girls who were sisters and were aged 10 years and 6 years respectively also studied in the school. There was a complaint that biscuits and snacks were being stolen from the school. In order to catch thief, one student of the school namely Sanjay Rajput placed his mobile phone in video recording mode after taking out its sim-card. Thereafter the students of the school went out to play. At that time, petitioner Shyamakant and two minor sh victims were in the hall. When Sanjay Rajput returned, he found that the mobile contained video recording of sexual e ad acts between petitioner Shyamakant on one hand and two minor victims on the other. In the video clip, the minor Pr victims were seen masturbating Shyamakant. This video went a viral and found its way to Sunil Mishra, who lodged the first hy information report.

ad Learned counsel for the petitioner submits that the petitioner has been falsely implicated in the case. It has been mentioned M by the first informant in the FIR that petitioner Shyamakant of owed Rs. 85,000/- to him, which he did not pay. It has also been submitted that so far statements of 15 witnesses have rt been recorded and all of them including two minor victims ou and their guardians have turned hostile. The girls did not C support the prosecution at all. Sanjay Rajput has also turned hostile and has stated that no mobile phone was seized from h ig his possession. The certificate under section 65-B(4) of the H Evidence Act as filed in the case does not fulfill the requirements of the provisions. It has been issued by the professional videographer namely Dharmendra who has merely stated that he had seen the video clip on mobile phone; wherein, two girls are seen playing with the private part of a man. Thus, this so called certificate is useless. First informant Sunil Mishra has also turned hostile and has stated that the video clip he had seen was foggy and no one could be identified therein. By its order dated 25.05.2017, the trial Court has declined to frame a charge under section 376 (Jha) or 376/511 of the Indian Penal Code and 5/6 of the POCSO Act and only a charge under Section 11(1)/12 and 7/8 of the sh POCSO Act has been framed. The petitioner has been in custody since 10.01.2017; therefore, it has been prayed that e ad the petitioner be released on bail. Learned Government Advocate for the respondent/State on Pr the other hand has opposed the application stating that the a SD card installed in the mobile phone is primary evidence of hy the offence; therefore, it requires no certification under ad Section 65-B(4) of the Indian Evidence Act. It was sent to FSL Chandigarh and as per the report, the video has not been M tempered with. Likewise, the guardians of the girls have of admitted in their evidence that the girls had told the police about the incident in their presence.

rt Keeping in view the facts and circumstances of the case in ou their entirety, particularly the facts, as pointed out by the C learned counsel for the petitioner, in the opinion of this Court, the petitioner deserves to be released on bail. h ig Consequently, this third application for bail under Section H 439 of the Code of Criminal Procedure filed on behalf of petitioner Shyamakant Sharma, is allowed. It is directed that the petitioner shall be released on bail on furnishing a personal bond in the sum of Rs. 60,000/- with one solvent surety in the same amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Code of Criminal Procedure.

Certified copy as per rules.

b ig h C ou rt of M ad hy a Pr ad e JUDGE sh (C V SIRPURKAR)