Madhya Pradesh High Court
Pushpendra Ahirwar vs The State Of Madhya Pradesh on 28 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 28th OF SEPTEMBER, 2022
MISC. CRIMINAL CASE No. 46623 of 2022
BETWEEN:-
PUSHPENDRA AHIRWAR S/O BHOLA AHIRWAR,
AGED ABOUT 24 YEARS, OCCUPATION: LABOUR
R/O MUDIYA, BHONTA, P.S. CHANDLA, DISTT.
CHHATARPUR (M.P.) (MADHYA PRADESH)
.....PETITIONER
(BY MS. SHRISHTI KASHYAP- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION CHANDLA DISTRICT
CHHATARPUR (M.P.) (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANOJ KUMAR JHA-PANEL LAWYER)
This application coming on for admission this day, the court passed the
following:
ORDER
This second bail application under Section 439 of the Code of Criminal Procedure has been filed on behalf of applicant-Pushpendra Ahirwar for grant of bail pending the trial.
His first bail application was dismissed as withdrawn and not pressed by this Court vide order dated 25.07.2022 passed in M.Cr.C. No.29757/2022.
The applicant has been in custody since 01.06.2022 in connection with Crime No.119/2022, registered at P.S. -Chandla, District- Chhatarpur (M.P.) for commission of offence under Sections 376(2)(n), 506 of IPC r/w Section 3/4 of Signature Not Verified Signed by: BIJU BABY Signing time: 9/30/2022 10:32:59 AM 2 the POCSO Act,2012. The applicant along with other co-accused is facing trial in SC Case No.3/22 (State vs. Maiku and others) for commission of said offences before Additional Sessions Judge, Lavkush Nagar, Chhatarpur.
As per the prosecution story, on 19.05.2022 prosecutrix filed an application in writing before police Chandla stating that she lost her mother one year ago. She lived with her father and grand-mother. Her father and grand- mother often remain ill. On account of their ill-health 7-8 months ago, her father had asked her real maternal uncle Maiku to come and live with them to look after them since then Maiku was residing with them. On 05.02.2022 at around 11:00 p.m. when she was sleeping in her room her maternal uncle forcibly entered into her room and committed aggravated sexual assault/rape upon her by gagging her mouth. Thereafter he continuously committed aggravated sexual assault/rape upon her. Her maternal uncle had threatened her that if she disclosed this incident to anyone he will eliminate her. On account of illness of her father she did not disclose the incident to anyone. On 18.05.2022, when her brother came to home she narrated the entire story to him. In medical examination, prosecutrix was found pregnant.
In her statement under Section 164 of Cr.P.C. recorded on 31.05.2022, she stated that besides Maiku who is 60-70 years old, Pushpendra had also committed aggravated sexual assault/rape upon her for two times. Thus, her maternal uncle Maiku and Pushpendra both committed rape and aggravated sexual assault upon her due to which she became pregnant. In due course, prosecutrix has delivered a male child. The blood samples of the prosecutrix, new born baby and accused persons have been sent for DNA report.
Learned counsel for the applicant has submitted that applicant has not committed any offence. He is innocent. He has been falsely implicated. It is Signature Not Verified Signed by: BIJU BABY Signing time: 9/30/2022 10:32:59 AM 3 further submitted that in her evidence before the Court in cross-examination, prosecutrix has stated that Pushpendra had not committed rape/aggravated sexual assault upon her. She has roped him in the commission of offence at the behest of employees of the Nari Niketan and others.Therefore, in the light of the aforesaid evidence before the trial Court, it has been prayed that applicant Pushpendra be released on bail.
In her examination-in-chief before the trial Court, prosecutrix has clearly deposed that Pushpendra too had committed aggravated sexual assault/rape upon her but in cross-examination, she has twisted her version. It cannot be overlooked that blood samples of the prosecutrix, new born baby and both accused persons namely Pushpendra and Maiku have been sent for DNA profiling. Accused Maiku is more than 60 years old whereas Pushpendra is a 24 year old boy.
However, without expressing any opinion on the merits of the case, this Court is not required to appreciate the evidence of the minor prosecutrix at this stage when trial is underway. Secondly, before forming any opinion in this matter about accusation against Pushpendra, it is desirable to wait for the DNA examination report.
Therefore, having taken into consideration all the facts and circumstances of the case, I am of the view that it is not a fit case for grant of bail to accused/applicant-Pushpendra at this stage mere on the basis of contradictory evidence of the prosecutrix before the trial Court.
Therefore, this second bail application under Section 439 of the Code of Criminal Procedure filed on behalf of applicant-Pushpendra Ahirwar, is dismissed.
Signature Not Verified Signed by: BIJU BABY Signing time: 9/30/2022 10:32:59 AM 4(DINESH KUMAR PALIWAL) JUDGE b Signature Not Verified Signed by: BIJU BABY Signing time: 9/30/2022 10:32:59 AM