Ramnarayan vs The State Of Madhya Pradesh
2023 Latest Caselaw 13265 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT INDORE
                                                      BEFORE
                                          HON'BLE SHRI JUSTICE ANIL VERMA
                                               ON THE 16 th OF AUGUST, 2023
                                        MISC. CRIMINAL CASE No. 31945 of 2023

                          BETWEEN:-
                          RAMNARAYAN S/O BHERULAL GURJAR, AGED ABOUT
                          42 YEARS, OCCUPATION: LABOR R/O: GRAM RAJPURA,
                          TEHSIL RAMPURA P.S. RAMPURA, DISTRICT NEEMUCH
                          (MADHYA PRADESH)

                                                                                          .....APPLICANT
                          (BY SHRI HIMANSHU THAKUR - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH
                          STATION HOUSE OFFICER THROUGH POLICE STATION
                          NAI AABADI, DISTRICT MANDSAUR (MADHYA
                          PRADESH)

                                                                                    .....NON APPLICANT
                          (BY SHRI VIRAJ GODHA - PANEL LAWYER)
                          (SHRI VIJAY SHARMA - ADVOCATE FOR THE COMPLAINANT)

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

1. This is the 2nd application filed by the applicant under Section 439 of Cr.P.C. for grant of regular bail relating to Crime No.208/2020 registered at Police Station Nai Abadi, Mandsaur for the offence under Section 376-D, 506, 34, 324, 384, 376(2)(m)(n)(k), 201 of IPC.

2. Applicant's first bail application was dismissed vide order dated 30.6.2023.

3. As per the prosecution story, the prosecutrix launched an FIR at Signature Not Verified Signed by: TRILOK SINGH SAVNER Signing time: 17-Aug-23 10:44:38 AM

Police Station Nai Aabadi by stating that co-accused Dashrath often used to visit her house after consuming liquor and threatened her. Two days prior to Rakshabandhan co-accused Dashrath came her home in intoxicated condition and told her to talk to him on mobile. When prosecutrix denied to do so Dashrath started abusing her and took out a pistol and threatened her that he will kill her. After Rakshabandhan co-accused Dashrath called her in a shop, forced her to be nude and recorded her obscene video and committed rape upon her. Thereafter, he started blackmailing her. Dashrath, Karulal, Kamlesh, Jujhar and Ramnarayan repeatedly committed rape / gang rape upon the prosecutrix and after five days, accused Karulal and Dashrath again went to house of

prosecutrix and also burnt private part of prosecutrix by using hot spoon. On 15/10/2020, when prosecutrix denied to come, Dashrath beat her and snatched her gold ornaments. Accordingly, offence has been registered against the applicant and other co-accused persons.

4. Learned counsel for the applicant contended that applicant is innocent and he has been falsely implicated in this matter. He is in custody since 25.4.2023. Although applicant's earlier bail application was dismissed on merit vide order dated 30.6.2023, but thereafter prosecutrix (PW-1) has been again examined before the trial court regarding the trial of the present applicant and she did not state anything against the present applicant in respect of the aforesaid offence. This is a material change in the circumstances. Hence, he prays that applicant be released on bail.

5. Per-contra, learned PL for respondent/State opposes the bail application and prays for its rejection.

6. Counsel for the prosecutrix submits that the prosecutrix has no objection if bail is given to the present applicant. Signature Not Verified Signed by: TRILOK SINGH SAVNER Signing time: 17-Aug-23 10:44:38 AM

7. Perused the case diary as well as the impugned order of the court below.

8. Considered all the facts and circumstances of the case, arguments advanced by counsel for the parties, nature and gravity of allegation as also the fact that prosecutrix (PW-1) in her earlier statement categorically stated that at the time of incident present applicant along with other co-accused persons committed gang rape upon her and also prepared her nude video and after some days they looted her golden ornaments and also burnt her private part by using hot spoon. Although later on prosecutrix in further statement did not state against the present applicant.

9. At the stage of consideration of bail, marshalling of the prosecution witnesses is not permissible as per the judgment of Hon'ble Supreme Court in the case of Satish Jaggi Vs. State of Chattisgarh & Ors. (Cr.A.No.651/2007) decided on 30/07/2007, wherein it has been held as under:-

'At the stage 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.'

10. It is also noteworthy that after recording examination-in-chief of the

prosecutrix, her cross-examination was deferred 3 times and after lapse of an year her cross-examination was done, in which she changed some of her version.

11. As per the law laid down by the Hon'ble Supreme Court in Satish Jaggi (supra), this Court can only go into the question of the prima facie case established for granting bail. At the stage of consideration of bail, this Court Signature Not Verified Signed by: TRILOK SINGH SAVNER Signing time: 17-Aug-23 10:44:38 AM

cannot go into the question of credibility and reliability of the witnesses put up by the prosecution.

12. In view of the above, there is no material change in the circumstances in which the applicant may be entitled for bail. Hence, this repeated bail application is dismissed.

C.C. as per rules.

(ANIL VERMA) JUDGE trilok

Signature Not Verified Signed by: TRILOK SINGH SAVNER Signing time: 17-Aug-23 10:44:38 AM