Rambabu Ahirwar vs The State Of Madhya Pradesh
2022 Latest Caselaw 9847 MP

                                  1
             IN THE HIGH COURT OF MADHYA PRADESH
                          AT GWALIOR
                                BEFORE
             HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                           ON THE 18th OF JULY, 2022

       MISCELLANEOUS CRIMINAL CASE No. 28692 of 2022

        Between:-
        RAMBABU AHIRWAR S/O SHRI BHAGUNTE @
        BHAGWAN SINGH AHIRWAR, AGE- 22 YEARS,
        R/O JHALAI BAWRI MOHALLA, POLICE
        STATION CHANDERI, ASHOKNAGAR (MADHYA
        PRADESH)

                                                               .....APPLICANT
        (BY SHRI ASHFAQ KHAN - ADVOCATE)

        AND

1.      STATE OF MADHYA PRADESH THROUGH
        POLICE STATION BAHADURPUR, DISTRICT
        ASHOKNAGAR (MADHYA PRADESH)

2.      PROCECUTRIX THROUGH POLICE STATION
        BAHADURPUR,      DISTRICT ASHOKNAGAR
        (MADHYA PRADESH)

                                                            .....RESPONDENTS
        (BY SHRI NAVAL KISHORE GUPTA - PUBLIC PROSECUTOR)

      This application coming on for hearing this day, the court passed the

following:
                                   ORDER

Case diary is available.

This third repeat application under Section 439 of Cr.P.C. has been filed for grant of bail. Second bail application of the applicant was dismissed by order dated 22/04/2022 passed in MCRC No.19304/2022.

The applicant has been arrested on 05/06/2021 in connection with Crime No.157/2021 registered at Police Station Bahadurpur, District Ashoknagar for

offence under Sections 363, 376 (3) 376 (2) (n) of IPC and under Sections 5 (L)/6, 5 (n)/17 of POCSO Act.

It is submitted by the counsel for the applicant that the prosecutrix has turned hostile. The only allegation against the applicant was that he had handed over the prosecutrix to co-accused Mithun who in his turn handed over her to co-accused Chhotu, who had committed rape on the prosecutrix. However, as per the DNA test report, the DNA profile of co-accused Chhotu was found in the incriminating articles of the prosecutrix. Since, no allegations have been made by the prosecutrix in her evidence against the applicant, therefore, at present, there is no substantive evidence against the applicant. The trial is likely

to take sufficiently long time and there is no possibility of his absconding or tampering with the prosecution case.

Per contra, the application is vehemently opposed by the counsel for the State. However, it is fairly conceded that the prosecutrix had turned hostile, but in the DNA test report, the DNA profile of co-accused Chhotu was found. The applicant has no criminal history. It is submitted that although, the prosecutrix has not supported the prosecution case, but it is submitted that it appears that either the prosecutrix had given a false information to the police or she has not narrated the truth before the Court, therefore, she is liable to be prosecuted.

So far as the question of prosecution of the prosecutrix is concerned, it is directed that the Trial Court while deciding the trial shall address on this issue also and shall pass a specific order as to whether the prosecution of the prosecutrix is warranted or not ?

Considering the facts and circumstances of the case and without commenting on the merits of the case, the application is allowed. It is directed that the applicant be released on bail on furnishing a personal bond in the sum

of Rs.1,00,000/- (Rupees One Lac Only) with one surety in the like amount to the satisfaction of the Trial Court/Committal Court to appear before the Court on the dates given by the concerned Court.

This order shall remain effective till the end of the trial but in case of bail jump, it shall become ineffective.

In the light of the judgment passed by the Supreme Court in the case of Aparna Bhat & Ors. vs. State of M.P. passed on 18/03/2021 in Criminal Appeal No.329/2021, the intimation regarding grant of bail be sent to the complainant.

Certified copy as per rule.

(G.S. AHLUWALIA) JUDGE Pj'S/-

Digitally signed by PRINCEE BARAIYA Date: 2022.07.18 17:44:00 -07'00'