Kali Bai And Others vs State Of MP And Others

Anil Verma, J

Both these petitions have arisen out of same crime number of same police station, therefore, they are heard together and are being disposed of by this common order.

Applicant-Kalibai has filed the first bail application and applicant Savita Bai has filed the second bail application under Section 439 of the Code of Criminal Procedure, 1973. They are in Jail since 04.8.2021 in connection with Crime No.232/2021 registered at P.S. - Shujalpur Mandi, District Shajapur (M.P.) for commission of offence punishable under Section 363, 366, 376(2)(N), 370, 370-A, 342, 120-B of IPC, under Section 5(L)/6/17, 17 of POCSO Act.

As per prosecution story, on 03.07.2021 complainant-Poonam, mother of the prosecutrix lodged a missing person's report at police station- Sujalpur Mandi to the effect that on the same day at about 10.30 a.m. her minor daughter i.e. prosecutrix was alone at home and she had gone for her work. At about 7 p.m. when she came back to home, she found that prosecutrix was missing. She searched her in nearby places but she could not find her and on the basis of the missing report, offence has been registered against the present applicants. After lodging the said report, prosecutrix had informed the complainant through mobile phone that she is living with co-accused Shahrukh. During the investigation, on 01.08.2021 the prosecutrix was recovered and she narrated that Shahrukh took her to Ujjain, where he kept her for about 3 months and committed rape upon her several times. Then, Sonu took her in the house of applicant Kalibai on the pretext that he will provide her good job. The present applicant Antar Singh along with Monika and Jagdish managed to sell the prosecutrix through Kalibai to co-accused Sonu on payment of Rs.1,65,000/- then Sonu committed rape upon her several times.

Learned counsel for the applicants submits that the applicants are innocent and they have been falsely implicated in this matter. The applicants are in custody since 04.8.2021. As per the prosecution story, no offence is made out against the present applicants regarding abduction or rape. Investigation is over and charge sheet has been filed. He further submits that the prosecutrix (PW-1) has been examined before the trial Court and she has turned hostile and has not supported the case of the prosecution. Applicants are permanent residents of district Jhalawad (Rajasthan) and there is no apprehension of their fleeing away from the course of justice and tampering with the prosecution evidence. Final conclusion of trial will take considerable long time. Learned counsel for the applicants submits that co-accused Antar Singh has been released on bail vide order dated 10.12.2021 passed in MCRC No.56452/2021 by this Court. Hence, on the ground of parity also, the present applicants are also deserve for bail.

Per-contra, learned PL for respondent/State opposes the bail application and prays for its rejection by submitting that a minor girl-prosecutrix has been raped and sold several times by the accused persons.

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

After perusal of the statement of prosecutrix (PW-1), it reveals that she has turned hostile before the trial Court and has not supported the prosecution version. She has categorically stated in her statement that present applicants has neither abducted her, nor they have not sold her anywhere. Prosecutrix has also stated that she was major at the time of the incident and she had gone to her grand-mother's house at Ujjain on her own accord.

Considering all the facts and circumstances of the case, arguments advanced by counsel for the parties, nature and gravity of allegation as also taking note of the fact that prosecutrix has turned hostile before the trial Court and has not supported the case of the prosecution and she did not state anything against the present applicants regarding the aforementioned offences and co-accused Antar Singh has been enlarged on bail, it would be appropriate to release the applicants on bail. Therefore, without commenting on the merits of the case, the applications are allowed.

It is directed that applicants be released on bail on their furnishing personal bond in the sum of Rs.1,00,000/- (Rs. One Lac only) each with separate solvent surety in the like amount to the satisfaction of the trial Court for their appearance before the trial Court, as and when required. They shall abide by all the conditions enumerated u/S. 437(3) Cr.P.C.

Before releasing the applicants from the custody, the Jail Authorities are directed to medically examine them in order to rule out the possibility of Covid-19 infections and shall comply with the directions issued by the Hon'ble Apex Court in W.P. No. 01/2020.

Applications are disposed off.

CC as per rules.