Shrimati Indu Prajapati vs State Of MP And Anr

G.S. Ahluwalia, J

This first application under Section 439 of CrPC has been filed for grant of bail.

The applicant has been arrested on 05/02/2021 in connection with Crime No.114/2021 registered at Police Station Ambah, District Morena for offence under Sections 376, 376(2)(n), 344 of IPC and under Section 5 /6 of the POCSO Act.

It is submitted by the learned Senior Counsel for the applicant that the applicant is the maternal aunt of the prosecutrix. There is no allegation of instigating the co-accused Bhola to commit rape.

Per contra, it is submitted by the Counsel for the State that it is true that the applicant is the maternal aunt of the prosecutrix. It is submitted that as per the ossification test, the age of the prosecutrix is between 16-17 years. According to the prosecution story, the applicant brought the offer of marriage of Bhola with the prosecutrix and instigated her parents that they should marry the prosecutrix to Bhola and on her insistence, her parents agreed for marriage. The parents of the prosecutrix are poor. When she came to her maternal house, then she expressed that she would not involve in physical relationship, however, Bhola did not agree and forcibly committed rape on her. He used to keep the prosecutrix under lock. The co-accused Bhola used to commit rape on her repeatedly without her consent. On one day, Bhola brought her to the house of the applicant where the police party came there and then the entire incident was narrated to the police. It is the applicant who was an instrument in the marriage of a minor girl with the co-accused Bhola. It is further submitted that the prosecutrix was subjected to physical relationship without her consent. The Supreme Court in the case of Independent Thought vs. Swatantr Jatav vs. State of M.P. & Anr. Union of India & Anr. reported in (2017) 10 SCC 800, has held that the physical relationship with a wife below 18 years of age would be an offence under Section 376 of IPC.

Heard the learned Counsel for the parties.

Considering the totality of the facts and circumstances of the case, no case is made out for grant of bail. The application fails and is hereby dismissed.