Madhya Pradesh High Court
Farookh Khan vs The State Of Madhya Pradesh on 3 September, 2022
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 3rd OF SEPTEMBER, 2022
MISC. CRIMINAL CASE No. 40692 of 2022
Between:-
FAROOKH KHAN S/O SHRI RASID KHAN, AGED
ABOUT 21 YEARS, R/O GRAM BADAKHKEDA
(SIRSODA), P.S. DEVNAGAR, DISTRICT RAISEN
(M.P.) (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANKALP KOCHAR, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
P.S. DEVNAGAR DISTRICT RAISEN M.P.
(MADHYA PRADESH)
2. VICTIM A D/O NOT MENTION THROUGH P.S.
DEVNAGAR DIST. RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAVINDRA SHUKLA, LEARNED PANEL LAWYER )
This application coming on for admission this day, the court passed the
following:
ORDER
This first bail application under Section 439 of the Code of Criminal Procedure has been filed on behalf of applicant-Farookh Khan for grant of bail, pending the trial.
The applicant has been arrested in connection with Crime No.70/2022, registered at P.S.-G.R.P., Devenagar, District-Raisen (M.P.) for commission of offence under Sections 363, 366, 376(2)(n), 376(3) of IPC and under Section 5(L)/6 of PCSO Act. The applicant is in jail since 06.04.2022.
Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/3/2022 6:13:57 PM 2A s per the prosecution story, on 04.04.2022, an FIR was lodged by grand-father and the mother of the prosecutrix that her 15 years and 7 months old daughter is missing since night. Search was made for her but she could not be traced. Earlier she was talking on phone with one boy Farookh Khan. Farookh was also missing from his home. At this, FIR was registered. Later prosecutrix was recovered from Dewas on 06.04.2022. She in her statement under Section 164 of Cr.P.C. and 161 of Cr.P.C. had stated that in Dewas she was raped and aggravated sexual assault was repeatedly made upon her by Farookh. After investigation, charge-sheet was filed and applicant is facing session trial.
Learned counsel for the applicant has submitted that applicant has not committed any offence. He has been falsely implicated. He is innocent. By filing the certified copies of the evidence of the prosecutrix and her father, grand- father, mother and grand mother, it has been contended that before trial Court in their evidence none of them have supported the prosecution case as they have turned hostile. It is further submitted that police has not sent any blood or other sample for DNA profiling. Therefore, nothing remains against the present applicant to be adjudicated. Therefore, it has been prayed that applicant/accused be released on bail.
On the other hand, learned counsel for the State has opposed the grant of bail to the applicant but has fairly admitted that police has not sent any sample for matching DNA profile of the prosecutrix and the applicant/accused.
At the time of commission of offence, prosecutrix was only 15 years and 7 months old. Section 53-A and 164-A of Cr.P.C. mandates medical examination of the victim of rape and the accused and also for DNA profiling.
Signature Not VerifiedIt is regretful to note that despite repeated directions by this Court in various Signed by: KUNDAN SHARMA Signing time: 9/3/2022 6:13:57 PM 3 cases, samples of the accused and the victim of rape/aggravated sexual assault are not being sent for DNA profiling by the police in State. It is a lapse not only on the part of the investigation agency and State but also shows that police is not discharging its duty in case of rapes/aggravated sexual assault as per the intent of legislation. If, in a case of aggravated sexual assault prosecutrix turns hostile in her evidence before Court, trial Court in absence of any scientific or forensic evidence, has no option but to acquit the accused.
In this case minor prosecutrix has turned hostile. Even family members have turned hostile. Blood samples of prosecutrix and accused were not taken and sent for DNA profiling. It is a sorry state of affairs on the part of investigation agency which is not discharging its duty efficiently and as per the mandate of law. Therefore, S.P. Raisen is directed to take necessary disciplinary action against the erring investigating officers and the police personnel, who have neglected in making compliance with the provisions of Sections 53-A and Section 164-A of Cr.P.C. In this case prosecurix has turned hostile and samples have not been sent for DNA profile. In such circumstances, this Court has no option but to release the applicant on bail. Therefore, having taken into consideration the evidence of prosecutrix and other witnesses before trial Court, I am inclined to release the applicant on bail. Consequently, this first bail application under Section 439 of the Code of Criminal Procedure for grant of bail filed on behalf of applicants stands allowed.
I t is directed that applicant-Farookh Khan be released on bail on his furnishing a personal bond in the sum of Rs.50,000 (Rupees Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court, for his regular appearance before the trial Court during trial with a Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/3/2022 6:13:57 PM 4 condition that he shall remain present before the concerned Court on all the dates fixed by it during trial. He shall abide by all the conditions enumerated under Section 437(3) of Cr.P.C.
This order shall be effective till the end of the trial. However, in case of bail jump and breach of any of the conditions of bail, it shall become ineffective.
A copy of this order be sent to S.P. Raisen for strict compliance. Certified copy as per rules.
(DINESH KUMAR PALIWAL) JUDGE kundan Signature Not Verified Signed by: KUNDAN SHARMA Signing time: 9/3/2022 6:13:57 PM