Madhya Pradesh High Court
Vinod Kumar Bharadwaj vs The State Of Madhya Pradesh on 8 January, 2020
Author: Akhil Kumar Srivastava
Bench: Akhil Kumar Srivastava
1 MCRC-46791-2019
The High Court Of Madhya Pradesh
MCRC-46791-2019
(VINOD KUMAR BHARADWAJ Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 08-01-2020
Shri Vikas Mahawar, learned counsel for the applicant.
Shri Manoj Kumar Jha, learned counsel for the Respondent [OBJ].
Shri Vaibhav Saxena, learned G.A. for the State.
Heard. Case diary is available.
This is the second bail application filed by the applicant/accused under Section 439 of Cr.P.C for grant of bail in connection with Crime No. 31/2019 registered at Police Station Adegaon District Seoni for the offence punishable under Sections 363, 366, 376, 376(2) (i), 376(2)(j), 376(2) (1), 342 of I.P.C. and 4,5(k), 5(m), 6 of POCSO Act.
As per the prosecution case, the applicant is alleged to have committed rape on the prosecutrix, who is handicapped.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the case. There is no external or internal injury on the private part of the prosecutrix. Even D.N.A. report is negative, so far as the applicant is concerned. Charge sheet has been filed. The applicant has no criminal antecedents. He is in custody since 30.03.2019. The applicant is permanent resident of District and there is no likelihood of his absconding or tampering with the prosecution case. On these grounds, prayer is made to enlarge the applicant on bail.
Per contra, learned Government Advocate for the State and the counsel for the objector vehemently oppose the application and pray for dismissal of the bail application. It is submitted by the learned Government Advocate that under section 375(a) of the I.P.C. it is not necessary that there should be complete penetration of penis with emission of semen and rapture of hymen to constitute the offence of rape even an attempt at penetration is quite sufficient for the purpose of the law.
In support of his contention, the learned Government Advocate has Digitally signed by MANVENDRA SINGH PARIHAR Date: 10/01/2020 02:57:54 2 MCRC-46791-2019 invited the attention of this court to the to the Apex Court Judgement rendered in the case of Rajendra Datta Zarekar Vs. State of Goa, AIR 2008 SC 572.
Heard counsel for respective parties and perused the case diary. Considering the entire facts and circumstances of the case and looking to the act and gravity of offence, this court is of the considered view that the rape has been committed on a minor girl who is a physically disabled dumb girl. The Apex Court in the case of Satpal Singh Vs. State of Haryana AIR 2009 SC 2190 has held that though no semen was detected on clothes of the prosecutrix and opinion of doctor was only of possibility of attempt to rape, the accused was liable to be convicted. In the present case though no semen of the applicant was found on the clothes of the prosecutrix or in vagina but as per the M.L.C. report the Doctor has reported that the redness over clitoral region and inner vulval region has been found and the lady Doctor has opined that the girl seems to have been sexually assaulted. The Apex Court in the case of Wahid Khan Vs. State of M.P. (2010) 2 SCC 2 has held that even slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial.
Looking to the above factual and legal matrix of the case, this court is of the considered opinion that this repeat (second ) bail application does not deserve to be allowed therefore this court is not inclined to take a different view other than already taken on earlier occasion .
Accordingly, this second bail application is dismissed.
(AKHIL KUMAR SRIVASTAVA) JUDGE MSP Digitally signed by MANVENDRA SINGH PARIHAR Date: 10/01/2020 02:57:54