Madhya Pradesh High Court

Ramdas Fulhare vs The State Of M.P. on 11 June, 2021

Author: Gurpal Singh Ahluwalia

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 27492 of 2021 Ramdas Fulhare Vs. State of M.P.

Jabalpur, dated 11-6-2021

Shri Sankalp Soni, Counsel for the applicant

Shri Brahmdutt Singh, Counsel for the State

Case diary is available.

This Second application under Section 439 of Cr.P.C. has been

filed for grant of bail. The first application was dismissed as

withdrawn on 6-5-2021 in M.Cr.C. no. 18503 of 2021.

The applicant has been arrested on 7-3-2021 in connection

with crime no. 34 of 2021 registered at Police Station Bahela, Distt.

Balaghat for offence under Sections 376,376(2)(h),323,342,294,506

of I.P.C.

The Counsel for the applicant prayed for time to argue the

matter. When the adjournment was refused, then it was submitted by

the Counsel for the applicant, that since, his senior is unable to join

the Court proceedings, therefore, the case be adjourned. When it was

pointed out to the Counsel for the applicant, that when he has already

joined the Court proceedings, then why his senior is facing difficulty,

then it was replied by Shri Sankalp Soni, that he has not been

instructed to argue the matter, therefore, he would not argue the case.

Thus, it is clear that the sole intention of the Counsel for the

applicant is to some how get an adjournment. This practice cannot be

appreciated.

Under these circumstances, this Court is left with no other

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 27492 of 2021 Ramdas Fulhare Vs. State of M.P.

option but to decide the bail application on the basis of grounds

raised in the bail application and the arguments of the Counsel for the

State.

It is mentioned in the application that the applicant has been

falsely implicated because of local politics and rivalry. The whole

prosecution story is based on surmises and conjectures, and no

offence has been committed by the applicant. There is nothing

incriminating material to show any misconduct or crime on the part

of the applicant and there is no direct or indirect connection with the

crime. It is further mentioned that the applicant is the FATHER-IN-

LAW of the prosecutrix. The behavior of the prosecutrix was very

cruel after the marriage and She had extended threats to falsely

implicate her in-laws. She was all the time insisting that her husband

should reside separately from his family and since, the son of the

applicant did not agree for the same, therefore, false allegations have

been made. It is submitted that the son of the applicant, by filing his

affidavit has falsified the allegations of the prosecutrix. It is further

mentioned that in the first bail application, this Court had called for

the DNA report, but lateron, the application was permitted to be

withdrawn without waiting for the DNA report. Due to second wave

of Covid 19 Pandemic, the trial is likely to sufficiently long time.

The applicant is an old person, aged about 58 years. The prosecutrix

is major therefore no offence is made out against the applicant.

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 27492 of 2021 Ramdas Fulhare Vs. State of M.P.

Further, no external or internal injury was found on the body of the

prosecutrix.

Per contra, the application is vehemently opposed by the

Counsel for the State. Shri Singh has read out the statement of the

prosecutrix.

Considered the grounds raised in the application and the

submissions made by the Counsel for the State.

According to the prosecution, the applicant had committed rape

on the prosecutrix for multiple times, either in kitchen or at different

places. Even when the prosecutrix was pregnant, She was subjected

to rape by the applicant. So far as the direction to call for the DNA

test report given by the Court in the first bail application is

concerned, suffice it to say, that the first bail application was

withdrawn by the applicant. Secondly, the Supreme Court in the case

of Hussain Vs. Union of India reported in (2017) 5 SCC 502 has

held as under :

29. To sum up:

29.1. The High Courts may issue directions to subordinate courts that--

29.1.1. Bail applications be disposed of normally within one week;

29.1.2. Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;

29.1.3. Efforts be made to dispose of all cases which are five years old by the end of the year;

29.1.4. As a supplement to Section 436-A, but consistent

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 27492 of 2021 Ramdas Fulhare Vs. State of M.P.

with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the trial courts concerned from time to time; 29.1.5. The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

29.2. The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest;

29.3. The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts; 29.4. The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time;

29.5. The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Harish Uppal.

(Underline supplied)

Thus, it is clear that the High Court must decide the bail

applications within a period of one month from the date of filing of

the same. The first bail application i.e., M.Cr.C. No. 18503/2021

was filed on 1-4-2021 and more than one month had passed from the

date of filing of the application. Further more, the Supreme Court in

the case of Sunil Vs. State of M.P. reported in (2017) 5 SCC 393 has

held as under :

4. From the provisions of Section 53-A of the Code and the decision of this Court in Krishan Kumar it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar(para 44), Section 53-A really "facilitates the prosecution to prove its

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 27492 of 2021 Ramdas Fulhare Vs. State of M.P.

case". A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favouring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered.....

Thus, it is clear that even if the DNA report favours the

accused, still he can be convicted on the basis of other evidence and

the evidence of the prosecutrix cannot be rejected merely on the

ground that the DNA report is in favor of the accused.

Further, this Court while deciding the bail application, is not

supposed to deal with the matter like a Trial Court. Whether the

evidence which would come on record is reliable and credible or not,

cannot be decided at this stage, and this exercise should be left to the

discretion of the Trial Court. The Supreme Court in the case of

Satish Jaggi Vs. State of Chhatisgarh reported in (2007) 11 SCC

195 has held as under :

12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 27492 of 2021 Ramdas Fulhare Vs. State of M.P.

the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

So far as the affidavit given by the son of the applicant is

concerned, this Court cannot consider the same at this stage. The

applicant shall be free to examine his son in his defence.

Absence of injury on the body of the prosecutrix is of no

assistance to the applicant, because the allegations are that She was

raped by the applicant on various occasions and thus, if the Trial

Court finds that the evidence of the prosecutrix is reliable then it is

not expected to look for any corroboration. The Supreme Court in

the case of State of M.P. v. Babulal, reported in (2008) 1 SCC 234

has held as under :

18. As held by this Court in several cases, if a court of law finds evidence of prosecutrix truthful, trustworthy and reliable, conviction can be recorded solely on the basis of her testimony and no further corroboration is necessary. In this connection, we may refer to only two leading decisions of this Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat and State of Rajasthan v. Narayan.

Asking for corroboration is nothing, but adding a pinch a salt

to the injury of the prosecutrix.

Considering the totality of the allegations coupled with

seriousness of the allegations made against the applicant, who is the

father-in-law of the prosecutrix, no case is made out for grant of bail.

Before parting with this order, this Court would like to observe

HIGH COURT OF MADHYA PRADESH M.Cr.C. No. 27492 of 2021 Ramdas Fulhare Vs. State of M.P.

that while deciding the bail applications, this Court generally donot

make any observations which may prejudice the mind of the Trial

Court, but in the present case, since, the Counsel for the applicant

refused to assist the Court by arguing the matter, therefore, this Court

was left with no other option to deal with the grounds raised in the