Bhagwati Bai Kushwah @ Bhago @ ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 8189 MP

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          THE HIGH COURT OF MADHYA PRADESH
                      MCRC No. 50438/2021
 (BHAGWATI BAI KUSHWAH @ BHAGO @ BHAGA Vs STATE OF MADHYA
                   PRADESH AND ANOTHER)

Gwalior, Dated : 03/12/2021

       Shri S.K. Mishra, Counsel for applicant.

       Shri Abhishek Sharma, Counsel for State.

       Case diary is available.

       In compliance to order dated 10.11.2021, the Collector, District

Shivpuri has filed his affidavit and has stated therein that no

compensation has been paid to the prosecutrix.

       This is second application filed under Section 439 of Cr.P.C.

for grant of bail. The first bail application was dismissed by order

dated 26.03.2021 passed in M.Cr.C. No.15209/2021 as withdrawn.

       The applicant has been arrested on 03.03.2021 in connection

with Crime No.05/2021 registered by Police Station Narwar, District

Shivpuri for offence punishable under Sections 376 (1) (4), 363, 506,

313, 120, 376 (2) (h), 328 of IPC and Sections 17, 3/4, 5/6 of POCSO

Act.

       It is submitted by Counsel for the applicant that according to

the prosecution case, the applicant who is Bua of the prosecutrix was

not well, and therefore, co-accused persons took the prosecutrix to the

house of applicant for nursing purposes. It is alleged that co-accused

persons committed rape on prosecutrix. It is submitted by Counsel for

applicant that now the prosecutrix has turned hostile. The applicant is

a lady and she is in jail since 03.03.2021. The trial is likely to take
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           THE HIGH COURT OF MADHYA PRADESH
                      MCRC No. 50438/2021
 (BHAGWATI BAI KUSHWAH @ BHAGO @ BHAGA Vs STATE OF MADHYA
                   PRADESH AND ANOTHER)

sufficiently long time and there is no possibility of her absconding or

tampering with prosecution case.

      Per contra, the application is vehemently opposed by Counsel

for the respondent/State. It is submitted that as per FSL report, human

sperm was found on the incriminating articles of the prosecutrix, and

in the light of judgment passed by Supreme Court in the case of

Hemudan Nanbha Gadhvi vs. State of Gujarat reported in (2019)

17 SCC 523, an accused can be convicted with the help of

circumstantial and forensic/scientific evidence also. It is further

submitted that it is true that the prosecutrix has not supported the

prosecution case but it appears that either she had lodged the false

report or she has not narrated the truth before the trial Court,

therefore, she is liable to be prosecuted.

In reply, it is submitted by Counsel for applicant that co-

accused Dhruv has already been granted bail by the Co-ordinate

Bench of this Court by order dated 23.08.2021 passed in M.Cr.C.

No.35027/2021, against whom there was an allegation of commission

of rape.

Heard the learned Counsel for the parties.

So far as contention of Counsel for the State that prosecutrix is

liable to be prosecuted for giving false evidence is concerned, it is

directed that while deciding the trial, the Trial Court shall positively

THE HIGH COURT OF MADHYA PRADESH MCRC No. 50438/2021 (BHAGWATI BAI KUSHWAH @ BHAGO @ BHAGA Vs STATE OF MADHYA PRADESH AND ANOTHER)

consider this aspect also.

Considering the fact that applicant is a lady and she is in jail for

the last eight months and the prosecutrix has turned hostile and

without commenting on the merits of the case, the application is

allowed. It is directed that the applicant be released on bail on

furnishing a personal bond in the sum of Rs.1,00,000/-(Rupees One

Lac Only) with one surety in the like amount to the satisfaction of the

Trial Court/Committal Court to appear before the Court on the dates

given by the concerned Court.

This order shall remain effective till the end of the trial but in

case of bail jump, it shall become ineffective.

In the light of the judgment passed by the Supreme Court in the

case of Aparna Bhat & Ors. vs. State of M.P. passed on 18/3/2021

in Criminal Appeal No.329/2021, the intimation regarding grant of

bail be sent to the complainant.

Certified copy as per rule.

(G.S. Ahluwalia) Judge

Aman AMAN TIWARI 2021.12.03 18:29:39 +05'30'