Rabu @ Rabesh vs The State Of Madhya Pradesh
2022 Latest Caselaw 5156 MP

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      IN THE HIGH COURT OF MADHYA PRADESH
                    AT INDORE
                            BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA
                   ON THE 08th OF APRIL, 2022

 MISCELLANEOUS CRIMINAL CASE NO.13746 OF 2022

 Between:-
 RABU @ RABESH
 S/O MAALSINGH BHURIYA
 AGE 25 YEARS, OCCUPATION - LABOUR
 R/O GRAM CHAGDI, BHURIYA FALYA,
 TEHSIL-JOBAT, DISTRICT-ALIRAJPUR (MP)
                                     ....APPLICANT
 (BY SHRI VIKAS RATHI, ADVOCATE )

 AND

 THE STATE OF MADHYA PRADESH
 THROUGH POLICE STATION - TANDA
 DISTRICT - DHAR (MP)
                                 ....NON-APPLICANT
 (BY SHRI RAJESH JOSHI, GOVT. ADVOCATE )
                     ORDER

This is SECOND bail application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973. The earlier application was dismissed as withdrawn on merit.

Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the aforesaid offence. The applicant is behind the bars since 20.10.2020. He submits that the prosecutrix has been examined before the Court below and she had specifically denied the prosecution story and she has also

stated that she is 20 years of age on the date of incident. The father (PW-2) of prosecutrix has stated that he did not want to materialize the marriage of applicant with the prosecutrix on account of caste issue. He further submits that the prosecution has not been able to bring out any cogent evidence against the present applicant in respect of aforesaid offence. The applicant is a young man of 25 years and is the permanent resident of District - Alirajpur and that there is no apprehension of his absconcion. Counsel for the applicant has placed reliance over the judgment of Coordinate Bench of this Court in the case of Chintu @ Sameer vs State of Madhya Pradesh in Criminal Appeal No.311 of 2018 of March 2022, citation of Apex Court in the case of Sunil vs. State of Haryana reported in (2010) 1 SCC 742 to bolster his submission in respect of consent and age of the prosecutrix. The final conclusion of trial would take sufficient long time. Hence prays for enlargement of the applicant on bail Learned counsel for the State has opposed the bail application and prays for its rejection.

Considering all the facts and circumstances of the case and nature and gravity of allegation and also taking note of the fact that as per entry of date of birth in the scholar register, the date of birth of prosecutrix is 07.08.2003, although the prosecutrix and her parents and other witnesses have been examined before the trial Court but they did not turn hostile and prosecutrix has categorically stated in her statement that present applicant has committed rape upon her several times.

Learned counsel for the applicant further contended that on

the basis of statements of prosecutrix, her parents and other witnesses, it appears that at the time of incident the prosecutrix was major, her date of birth was not proved by the prosecution by any cogent evidence and she was the consenting party and therefore in the changed circumstances, the applicant deserves for grant of bail. The Hon'ble Apex Court in the case of Satish Jaggi vs State of Chhattisgarh and Others (Criminal Appeal No.651/2007) decided on 30.07.2007 has held as under:-

"At the state of granting of bail, the Court can only go into the question of 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".

Although some witnesses have been examined before the Trial Court but the statements of other witnesses are remaining. As per the law laid down by the Apex Court in the case of Satish Jaggi (supra), this Court can only go into the question of prima facie case established for granting bail. At the stage of consideration of bail, this Court cannot go into the question of credibility and reliability of the witnesses put up by the prosecution.

In view of the evidence available on record without commenting upon the merits of the case, this Court is of the opinion that after rejecting the applicant's bail application on merit, there is no material changes in the present circumstances of the case. Therefore the present applicant is not entitled for grant of

bail. Accordingly the second bail application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973, is dismissed.

                                                        (ANIL VERMA)
 Arun/-                                                   JUDGE

ARUN NAIR
2022.04.08
19:06:10 +05'30'