Maukesh vs State Of Madhya Pradesh And Others

Deepak Kumar Agarwal, J

This is the seventh bail application u/S.439 Cr.P.C filed by the applicants for grant of bail. The first application was dismissed as withdrawn vide order dated 6.7.2021 in M.Cr.C. No.26699/2021 with liberty to come again after filing of charge sheet. The second application was dismissed as withdrawn vide order dated 11.08.2021 in M.CR.C. No.36933/2021 with liberty to come again after examination of prosecutrix. The third application was dismissed as withdrawn vide order dated 23.10.2021 in M.Cr.C. No.47098/2021 with liberty to repeat the prayer after suffering sufficient incarceration. The fourth application was dismissed on merit vide order dated 12.11.2021 in M.Cr.C. No.55445/2021. The fifth application was dismissed as withdrawn vide order dated 17.01.2022 in M.Cr.C. No.1013/2022. The sixth application was dismissed as withdrawn vide order dated 8.4.2022 in M.Cr.C. No. 16798/2022.

The applicant was arrested on 21.5.2021 in connection with Crime No.224/2016 by Police Station Kumbhraj, District Guna (MP) for the offence punishable under Sections 363, 366, 376(D) of IPC and Sections 5/6 of POCSO Act.

In brief, the prosecution case is that on 16.3.2016 at 3.05 PM Gum Insan regarding prosecutrix aged about 19 years was registered at Police Station Kumbhraj, District Guna under Section 363 IPC. During Gum Insan enauiry it came out that Mukesh and Ramesh persuaded her to go with them. Thereafter, on 16.7.2016 offence under Section 363 IPC bearing Crime No. 10/2016 was registered at Police Station Kumbhraj, District Guna, thereafter FIR was generated through computer bearing Crime No.224/2016. During investigation prosecutrix was rescued on 17.6.2017. Her statements under Section 161 Cr.P.C. were recorded. In her statement she has stated that she is aged about 17 years, resides at Village Jogipura and studied upto 5th standard. On 13.3.2017 at about 10.00 PM she along with her elder sister Shantibai went to attend the call of nature behind their house, there accused Mukesh Gurjar, S/o Chaganlal was sitting near hand pump, near him accused Ramesh having motorcycle was standing. When she reached at hand pump to take water, Mukesh, S/o Chaganlal caught hold of her right hand. When she cried Mukesh had not left her. During this her elder sister Shantibai after living her went away. Mukesh, S/o Chaganlal forcefully took her and seated her on the motorcycle of Ramesh. They took her in the house of accused Ramesh at Khedikala and kept in a closed room, there accused Mukesh, S/o Chaganlal and Ramesh forcefully committed sexual intercourse with her. Thereafter, both of them took her to village Vandaberh and left her there. After that Mangilal, S/o Asharam Gurjar and Mangilal, S/o Harichandra detained her in a room and committed sexual intercourse with her. Thereafter, Mangilal of Khedikala took her to different places and committed intercourse with her. Her family members brought her from Seekar, Rajastan. After her statement, she was sent for medical examination. As per MLC report, she is aged about 19 years. No injury marks were found on her internal parts and no definite opinion was given about rape. Thereafter, Sections 376(D), 366 of IPC and Section 5/6 of POCSO Act were enhanced. Accused Mukesh, s/o Chaganlal, Ramesh and both Mangilal were arrested. Thereafter, her statements under Section 164 Cr.P.C. was recorded in which she has alleged against present applicant-accused Mukesh Sagodiyawala and one Kamlesh and Diwan also that they have committed sexual intercourse with her. On the basis of aforesaid statement, applicant-accused Mukesh Gurjar, S/o Phoolchand was arrested on 21.5.2021. Thereafter charge sheet has been filed agaisnt present applicant-accused and other co-accused persons under Sections 376 (D), 363 and 366 of IPC and Sections 5/6 of POCSO Act. Her statements were recorded on 2.9.2021 regarding present applicant-accused Mukesh, S/o Phoolchand.

Learned Advocate for the applicant-accused Mukesh, S/o Phoolchand submitted that soon after her recovery after fifteen months her statements were recorded, but in her detailed statement she has nowhere alleged against the present applicant-accused Mukesh, S/o Phoolchand, thereafter for unknown reason under Section 164 Cr.P.C. she has alleged agaisnt him. He further submitted that as per prosecution story, the incident is of 13.3.2016. After fifteen months for the first time prosecutrix during examination under Section 164 Cr.P.C. on 19.6.2017 alleged against present applicant-accused that he has also committed sexual intercourse with her. It is further submitted that Co-ordinate bench during rejection of earlier bail application on 11.8.2021 in M.Cr.C. No.36933/2021 has given liberty to the applicant to come again after examination of prosecutrix. Thereafter on 23.10.2021 in M.Cr.C. No.47098/2021 liberty was given to repeat the prayer after suffering sufficient incarceration. DNA report of present applicant-accused Mukesh, S/o Phoolchand is also negative. Now investigation is complete and charge sheet has been filed and the conclusion of trial will take time. On such premises, learned counsel for the applicant prayed for bail.

Learned Public Prosecutor for the State vehemently opposed the application and prayed for its rejection.

Heard learned counsel for the rival parties at length and perused the case diary.

Looking to the aforesaid facts and circumstances of the case and also looking to the fact that agaisnt present applicant-accused soon after the incident FIR was not lodged, after fifteen months when prosecutrix was recovered in her statement she has not alleged against the present applicant-accused Mukesh, S/o Phoolchand, she has alleged under Section 164 Cr.P.C. when her statements were recorded, agaisnt present applicant-accused, applicant is in custody from 21.5.2021, DNA report regarding the present applicant-accused is negative, without commenting upon the merits of the case, this Court is of the opinion that the application should be allowed and by allowing the application it i s ordered that if applicant furnishes bail bond of Rs.25,000/- (Rupees Twenty Five thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court, he should be released on bail.

He will present during trial before the trial Court on each and every date.

Application stands allowed and disposed of.

Copy of this order be sent to the trial Court concerned for compliance.

Certified copy as per rules.