Chattisgarh High Court
Mahesh Dhakad vs State Of Chhattisgarh on 26 November, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No.8289 of 2021
• Mahesh Dhakad, S/o late Shobha Ram Dhakad, aged about 31
years, R/o village Pipronia, P.S. Pahargarh, District Muraina,
Madhya Pradesh.
---- Applicant (In Jail)
Versus
• State of Chhattisgarh, through S.H.O, Mohan Nagar, District- Durg
(CG).
....Non-applicant
For Applicant : Mr. B.P. Singh, Advocate
For Non-applicant : Ms. Hamida Siddique, Dy. Advocate
General
Hon'ble Mr. Justice Parth Prateem Sahu
Order On Board
26.11.2021
1.
This is first application filed under Section 439 of the Code of
Criminal Procedure, 1973 for grant of regular bail to applicant,
who is in custody since 21.7.2021 in connection with Crime
No.205/2021 registered at Police Station Mohan Nagar,
District Durg (CG) for commission of offence punishable under
Sections 363, 366, 376 of the Indian Penal Code and Sections
4 & 6 of the Protection of Children from Sexual Offences Act,
2012.
2. Case of the prosecution, in brief, is that father of prosecutrix
lodged missing report on 26.2.2021 based upon which initially
offence under Section 363 of IPC was registered against
unknown person. During the course of investigation, based on
mobile location of prosecutrix, she was recovered from
possession of applicant from village Piproniya, District
Muraina (MP). After recording of statement of prosecutrix,
crime in question is registered against applicant and he was
arrested.
3. Mr. B.P. Singh, learned counsel for applicant would submit that
on the date of incident, prosecutrix was a major girl, she on
her own will came to Raipur where she joined company of
applicant and both went to Muraina (MP). Prosecutrix resided
with applicant till her recovery. As per school admission
register (Dakhil Kharij Panji) seized by police, date of birth of
prosecutrix is '30.1.2004', but school admission register being
not admissible piece of evidence, date of birth mentioned
therein cannot be considered as full proof of age of
prosecutrix. He submits that prosecutrix was examined by
Radiologist for determination of her age and as per opinion of
Radiologist, age of prosecutrix is in between 18 to 19 years.
Therefore, it cannot be said that prosecutrix was minor on the
date of accident. Applicant is in jail since 21.7.2021, hence he
may be enlarged on regular bail. In support of his contentions,
learned counsel places his reliance on decision of Hon'ble
Supreme Court in Sunil vs. State of Haryana reported in
(2010) 1 SCC 743.
4. Per contra, Ms. Hamida Siddique, learned Deputy Advocate
General for the State opposes the submissions made by
learned counsel for applicant and submits that charge sheet
under Section 363, 366 & 376 of IPC and Sections 4 & 6 of
POCSO Act has already been filed against applicant. During
the course of investigation, police seized school admission
register, which is a public document maintained in schools run
by government in which particulars of students taking
admission in school or leaving school are recorded. According
to date of birth of prosecutrix mentioned in school admission
register, on the date of incident age of prosecutrix was about
16 years only. The Principal of concerned school also issued
certificate regarding handing over and taking back of school
admission register by police, which is available in case diary.
School admission register, a public document, will be proved
in accordance with law during trial, but at this stage, it cannot
be disbelieved. Prosecutrix in her statements recorded under
Section 161 & 164 of CrPC has made allegations and looking
to the fact that prosecutrix is minor and there is material
available showing prima facie involvement of applicant in
commission of crime, he is not entitled for grant of regular
bail.
5. Father of prosecutrix is present before this Court through
virtual mode from the District Legal Services Authority, Durg.
He raises strong objection in grant of bail to applicant.
6. I have heard learned counsel for the parties.
7. During the course of investigation, the police seized school
admission register wherein date of birth of prosecutrix is
mentioned as '30.1.2004'. Incident is of February, 2021. As
appearing from school admission register, on the date of
incident, prosecutrix was just above 16 years of age.
Prosecutrix in her statement stated that she came in contact
with applicant through mobile phone; on being called by
applicant on mobile, she went to Raipur from where applicant
took her to village Pipronia, District Muraina (MP). There is
also allegation that applicant established physical relations
with prosecutrix.
8. Case law relied upon by learned counsel for applicant is of no
help to applicant being distinguishable on facts. In that case,
suspicion has been raised pointing out date of admission,
period of admission and that prosecutrix has not attended
school. Said judgment was passed by Hon'ble Supreme Court
while considering judgment passed by the High Court
convicting appellant therein in appeal after evaluating
evidence on record. In the case at hand, the trial Court is still
to record evidence of witnesses.
9. In view of above, considering age of prosecutrix to be below
17 years and statement of prosecutrix recorded under Section
161 & 164 of CrPC, I do not find it to be a fit case where
applicant should be enlarged on regular bail.
10. Accordingly, bail application is rejected.
Sd/-
(Parth Prateem Sahu)
Judge
roshan/-
