Ajay vs The State Of Madhya Pradesh
2021 Latest Caselaw 2046 MP

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       THE HIGH COURT OF MADHYA PRADESH
                     M.Cr.C.No. 19424/2021
                (Ajay Vs. State of Madhya Pradesh)
Indore, Dated: 28.05.2021
       Shri Raghav Shrivastava, learned counsel for the applicant .
       Shri Hemant Sharma, learned counsel for the State.

       Heard learned counsel for the parties through video

conferencing.

       Learned counsel for applicant has filed certain apex court

judgments in which the statements of prosecutrix having shown

variance, the same are not relied upon by the apex court.

       Learned counsel for State submits that these citations pertain

to the stage which would be after conclusion of the evidence and at

present stage these citations would not be applicable.

       The order shall be passed shortly after perusing the aforesaid

citations.

       Heard.

                                           (Shailendra Shukla)
                                             Vacation Judge


mk

Lateron :

      Parties as before.

      This is first application under section 439 Cr.P.C. for grant of

bail in connection with crime No. 377/2020 registered at P.S. Bajna,

District Ratlam for the offence punishable under sections 354, 363,

366, 376AB, 506 of IPC and section 5m, 6, 9, 10 of POCSO Act.
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      As per prosecution story, an FIR was lodged on 12.12.2020 at

1.00 p.m. by the mother of the applicant that on 11.12.2020 she had

gone to attend the marriage of daughter of her brother-in-law at

village Bajna along with her daughter(prosecutrix). At about 8.00

p.m. when they were preparing bride for Varmala, the applicant

came and caught hold hand of the prosecutrix (daughter of the

informant) and tried to make her sit in his car. When the prosecutrix

shouted, the informant and other family members arrived at the spot

and the applicant fled away. FIR was registered under the

aforementioned sections. Immediately thereafter the statements of

the prosecutrix and her mother under section 161 Cr.P.C. were

recorded. However, on the same day i.e. 12.12.2020 their statements

under section 161 Cr.P.C. were recorded again in which the

allegations to the effect were levelled that on 11.12.2020 the

applicant had infact asked the prosecutrix to accompany him in his

car on the pretext of bringing some goods from the house. The

prosecutrix sat in his car. The applicant drove the car to some

distance from the Girls school where the marriage ceremony was

being performed and stopped the car at some distance and made the

prosecutrix to lie down, kissed her and took off his clothes and the

clothes of prosecutrix as well and tried to commit rape upon her. The

prosecutrix somehow shouted and was threatened by the applicant

not to narrate the incident to anyone, otherwise she herself would be

defamed. Prosecutrix states that she asked the applicant to leave her

back to her mother, thereafter the applicant then left her back to the
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venue of marriage. In view of such statement the offence was

enhanced to sections 363, 366, 376(a)(b), 506 of IPC and section

5(M)/6 of POCSO Act apart from other sections which have already

been registered against the applicant. The statements under section

164 Cr.P.C. were also recorded before the JMFC in which the

prosecutrix has narrated the story in the same manner in which she

had subsequently narrated in her 161 Cr.P.C. statement.

      Learned counsel submits that there has been complete

diversions between the statements of prosecutrix and her mother

recorded on the same day. He further states that there has been no

injury found on the person of the prosecutrix and also states that in

the spot map, the place of incident has been shown to be an open

place. Learned counsel has filed certain citations in support of the

submission that if the statement of prosecutrix if found to be

untrustworthy and not supported by the medical report, then accused

cannot be convicted :-

Jai Krishna Mandal Vs. State of Jharkhand, (2010) 14 SCC 534,
Narendra Kumar Vs. State (2012) 7 SCC 171, Sujit Tiwari Vs.
State of Gujarat, 2020 AIR (SC) 667, Sham Singh Vs. State of
Haryana, 2018 AIR (SC) 3976, Hem Raj Vs. State of Haryana,
2015(9) SCJ 668, Matru Vs. State of U.P., 2020 Supreme (ALL)
459.

      Learned Panel Lawyer for respondent/State submits that as

far as citations are concerned, they relate to the stage when the

evidence of the prosecutrix has been recorded which is not the case

here and therefore at this stage these citation are of no help to him.

He further submits that reason for different statements recorded on

the same day has been explained which was due to hesitation and

nervousness of the prosecutrix. When the true story came out, the

subsequent statements were made out on 20.12.2020. He further

submits that prosecutrix has affirmed the event unfolding on the date

of incident in her statement recorded under section 164 Cr.P.C.

which was made on oath before the court and there is no reason for

falsely implicating the applicant. So far as there being no injury

found on the person of prosecutrix, learned counsel submits that

applicant had not made forceful aggravated sexual assault and

therefore no injury has been found on the person of prosecutrix. So

far as spot map is concerned, learned counsel has drawn court's

attention to the spot 'A' which is shown to be the place where the

car was parked at the time of incident by the applicant. Moreover,

learned counsel has pointed out that from the car of applicant, some

pink colour metal stars have been recovered which apparently are

the same stars which were stitched on the lehnga of prosecutrix at

the time of incident.. Learned counsel has also argued to the effect

that similar stars have been taken out and seized by the police from

the lehnga of the prosecutrix and these stars which have been

collected from the lehnga are similar in nature to those stars which

have been found on the seat of the car belonging to the applicant.

Learned counsel submits that in view of such evidence,

looking to the gravity of the offence, the bail application be rejected.

Considered the submissions.

The statements made subsequently under section 161 Cr.P.C.

have been recorded on the same day i.e. 12.12.2020 which are

although at variance with the earlier statements, are only related to

outrage the modesty, however it does not appear that such

statements were concocted. The reason for variance has been

explained by the prosecutrix and her mother who have stated that

because of nervousness and extreme fright, the prosecutrix could not

narrate the whole story. The statement under section 164 Cr.P.C. has

been recorded on the same day i.e. 12.12.2020 which carry the

greater force than those under section 161 Cr.P.C.. The other

submission relating to seizure of pink colour stars from the seat of

the car being similar to those seized from the lehnga of the

prosecutrix is also an important piece of evidence, which prima facie

supports the later narration that prosecutrix was infact taken by the

applicant in his car. As far as the citations filed by the applicant is

concerned, there is substance in the submission of learned counsel

for State that these citations would not be of any help to the

applicant at this stage because without recording the evidence,it

cannot be said that prosecution story is totally false. Instead,

plausible explanation and material collected thereafter, supports the

case of prosecution prima facie. Looking to the gravity of offence,

no case is made out for grant of bail to the applicant.

In view of aforesaid, the M.Cr.C. stands rejected.

(Shailendra Shukla) Vacation Judge

mk Digitally signed by SMT MUKTA KOUSHAL Date: 2021.05.29 13:23:51 +05'30'