Irfan vs The State Of Madhya Pradesh
2022 Latest Caselaw 16089 MP

                                                  1
               IN         THE     HIGH COURT OF MADHYA PRADESH
                                        AT INDORE
                                             BEFORE
                                 HON'BLE SHRI JUSTICE ANIL VERMA
                                   ON THE 5 th OF DECEMBER, 2022
                                MISC. CRIMINAL CASE No. 53708 of 2022

              BETWEEN:-
              IRFAN S/O JAFAR KHAN,
              AGED ABOUT 27 YEARS,
              OCCUPATION: LABOUR
              R/O: AHMAD NAGAR, UJJAIN (MADHYA PRADESH)

                                                                               .....APPLICANT
              (BY SHRI LOKENDRA SINGH JHALA - ADVOCATE)

              AND
              THE STATE OF MADHYA PRADESH
              THROUGH POLICE STATION CHIMANGANJ MANDI,
              DISTT. UJJAIN (MADHYA PRADESH)

                                                                         .....NON APPLICANT
              (BY SHRI BHUVAN DESHMUKH - GOVERNMENT
              ADVOCATE)

                      This application coming on for admission this day, the court passed the
             following:
                                                   ORDER

Applicant has filed this second bail application under Section 439 of the Code of Criminal Procedure, 1973. He is in jail since 21.1.2022 in connection with Crime No.47/2022 registered at P.S. - Chimanganj Mandi, Ujjain (M.P.) for commission of offence punishable under Section 376(D) and 506(2) of IPC.

The first bail application being MCRC No.21417/2022 was dismissed as withdrawn vide order dated 26.5.2022.

Signature Not Verified As per the prosecution story, prior to the incident she was residing with Signed by: TRILOK SINGH SAVNER Signing time: 06-Dec-22 11:20:01 AM co-accused Arman after being deserted by her parents. At the time of incident

co-accused Arman brought present applicant Irfan and co-accused Akil with him at her house and as per the instructions given by Arman, prosecutrix prepared food for them. At about 11 to 12 p.m. while she was inside the house, at that time present applicant and other co-accused entered into the house and committed gang rape upon her and also threatened her that if she disclosed the incident to anyone, they will kill her children. After some time prosecutrix lodged FIR at P.S. Chimanganj Mandi, Ujjain. Accordingly offence has been registered.

Learned counsel for the applicant contended that applicant is innocent and he has been falsely implicated in this matter. He is in custody since

21.1.202. His earlier bail application was dismissed as withdrawn and thereafter investigation is over and charge sheet has been filed and prosecutrix (PW-2) has been examined before the trial Court and she has turned hostile. Final conclusion of trial will take considerable long time. Applicant is a permanent resident of District Ujjain. Hence, he prays that applicant be released on bail.

Per-contra, learned GA for respondent/State opposes the bail application and prays for its rejection by submitting that applicant's earlier bail application was dismissed as withdrawn. It is a heinous case of gang rape. Prosecutrix has deposed against the present applicant in her statement before the trial Court, therefore, applicant does not deserve for bail.

Perused the case diary as well as the impugned order of the court below. Considered all the facts and circumstances of the case, arguments advanced by counsel for the parties, nature and gravity of allegation as also

Signature Nottaking Verifiednote of the fact that prosecutrix (PW-2) has categorically stated in Para-3 Signed by: TRILOK SINGH SAVNER & 4 of her statement before the trial Court that first of all co-accused Arman Signing time: 06-Dec-22 11:20:01 AM

committed rape upon her, thereafter Irfan and Akil also committed rape upon her forcefully without her consent.

Counsel for the applicant contended that statement of prosecutrix (PW-

2) is contrary with her earlier statement, therefore, her statement cannot be relied, but it is notable that only one prosecution witness has been examined before the trial Court and rest of the witnesses are yet to be examined. As per the judgment of the Hon’ble Apex Court in the case of Satish Jaggi Vs. State of Chhattisgarh (Criminal Appeal No.651/2007, decided on 30.7.2007) at the stage of consideration of bail, marshalling of the prosecution witnesses is not permissible and the court cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. Hence in view of the evidence available on record this Court is not inclined to grant bail to the present applicant.

Accordingly this M.Cr.C. is hereby dismissed. C.C. as per rules.

(ANIL VERMA) JUDGE trilok

Signature Not Verified Signed by: TRILOK SINGH SAVNER Signing time: 06-Dec-22 11:20:01 AM