Tallu @ Rahul Valmik vs The State Of Madhya Pradesh
2021 Latest Caselaw 3152 MP

      THE HIGH COURT OF MADHYA PRADESH
                     M.Cr.C. No.14308/2021
           ( Tillu @ Rahul Valmik Vs. State of M.P.)
                                                                       1

Jabalpur, Dated : 09 / 07/ 2021
      Heard through video conferencing.
      Shri Anoop Kumar Saxena, learned counsel for the applicant.
      Shri Devendra Shukla, learned P.L. for the respondent / State.

Heard with the aid of case diary.

This is second bail application filed by the applicant under Section 439 of Cr.P.C.

Applicant Tillu @ Rahul Valmik was arrested on 26/10/2019 in Crime No.534/2019 registered at Police Station Nowgaon, District Chhatarpur (M.P.) for the offence punishable under Sections 376(D) of IPC.

The first bail application of the applicant has been dismissed on merits vide order dated 04.03.2020 passed in M.Cr.C. No. 8041/2019.

As per the prosecution case, the prosecutrix was married to Sitaram in the year 2005. After some time Sitaram divorced her due to which she suffered shock and became mentally ill. She was always aloof and talked very little. At the time of the incident, the prosecutrix was living in Guna near her sister Ramila from where in the month of September 2019, she went without informing anybody. It is further stated that on 25/10/2019, in the night when the prosecutrix was roaming at Nowgaon Bus stand, applicant Tillu @ Rahul Valmik and co-accused Dharmdas @ Dharamdas Balmik took her behind the shops located at the bus stand, Nowgaon, where they committed rape with her.

Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the offence. It is further submitted that the investigation is over and a charge-sheet has been filed. The prosecutrix was major and the statement of the prosecutrix has not been recorded by the police. In the absence of the statement of the prosecutrix, it cannot be said that the applicant committed rape THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.14308/2021 ( Tillu @ Rahul Valmik Vs. State of M.P.)

with the prosecutrix. Although, it is alleged that the prosecutrix was unsound mind but there is no evidence on record to show that the prosecutrix was mentally ill. On the contrary, in the MLC report, of the prosecutrix, it is mentioned that the prosecutrix understands everything. So it cannot be said that the prosecutrix is mentally ill. It is further submitted that statements of alleged eyewitnesses of the incident namely Irshad (PW-2), Mohd. Saddam (PW-3), Devenedra Pathak (PW-4) have been recorded by the trial court. They did not support the story and turned hostile. The applicant is in custody since 26/10/2019, charge-sheet has been filed and the conclusion of the trial will take time, hence prayed for the release of the applicant on bail.

Learned counsel for the State opposed the prayer and submitted that in the case diary statement of the prosecution witnesses it is clearly mentioned that the mental condition of the prosecutrix is not fit and presently she is admitted in Nirvana Foundation, Chhatarpur. Even her statement under Section 164 of the Cr.P.C. could not be recorded by the Judicial Magistrate First Class because she was not able to give a statement before Court, which clearly shows that the prosecutrix is mentally ill and applicant committed rape with her. So the applicant should not be released on bail.

The first application filed by the applicant was dismissed on merit by this Court vide order dated 04.03.2020 passed in M.Cr.C.No.8041/2020, thereafter there is no change in circumstance except custody period of the applicant. Hon'ble Apex Court in the case of Rajesh Ranjan Yadav alias Pappu Yadav v. CBI Through its Director reported in (2007) 1 SCC 70 held that bail, can not be granted solely on the ground of long incarnation in jail and inability of accused to conduct the defence. Apex Court in the case of State of THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.14308/2021 ( Tillu @ Rahul Valmik Vs. State of M.P.)

M.P. v. Kajad, (2001) 7 SCC 673 observed "It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169 : 2001 SCC (Cri) 113] and various other judgments."

From the statement of father of the prosecutrix and other witnesses it appears that the mental condition of the prosecutrix was not good. She left the house of her sister without informing anybody and on the date of incident she was roaming at Nowgaon bus stand. Her statement also could not be recorded by the Judicial Magistrate First Class under Section 164 of Cr.P.C. because she was not able to give statement before Court, which clearly shows her mental condition and it is alleged that the applicant and co-accused committed rape with the prosecutrix whose mental condition was not good. In this regard statements of other material witnesses have to be recorded by the trial court. So looking to the facts and circumstances of the case, this court is not inclined to grant bail to the applicant.

Hence, this M.Cr.C. is rejected.

It also appears from the record that applicant is in custody since 26.10.2019 and trial is still pending, so it is expected from the trial Court to dispose of the case as early as possible preferably within six months from the date of receipt of the copy of this order.

A copy of this order be sent to the concerned court for information and necessary compliance.

                                                                (Rajeev Kumar Dubey)
sarathe                                                               Judge


          Digitally signed
          by NAVEEN
          KUMAR
          SARATHE
          Date:
          2021.07.09
          16:58:25 +05'30'