Bhojrajsngh vs The State Of Madhya Pradesh on 11 July, 2017

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Miscellaneous Criminal Case No.6631/2017
Miscellaneous Criminal Case No.6651/2017
11.07.2017
Shri Manish Yadav, learned counsel for applicant
Rajkumar @ Bhagwan Singh s/o Babulal in
Miscellaneous Criminal Case No.6631/2017 and
applicant Bhojraj Singh s/o Savai Singh in
Miscellaneous Criminal Case No.6651/2017.
Shri Pushyamitra Bhargava, learned Public Pros-
ecutor for the non-applicant / State of Madhya
Pradesh.
Heard. Perused the case diary.
These first applications under Section 439 of
Criminal Procedure Code, 1973 for grant of bail has
been filed by applicants Rajkumar @ Bhagwan Singh
and Bhojraj Singh, who are implicated in Crime
No.49/2017 registered at Police Station, Salsalai,
District Shajapur (MP) for the offence punishable
under Sections 354-A/34, 376 (2) (I), 376 (D) and 376
of the Indian Penal Code, 1860, under Sections 3, 4, 5,
7 and 8 of the Protection of Children from Sexual
Offence Act, 2012.
The applicants are in custody since 15.05.2017.
As per the case diary, on 12.05.2017 at about
02.00 AM in the night, when prosecutrix came outside
from her room, at that time, present applicant caught
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hold her to outrage her modesty.
Learned counsel for the applicant has drawn my
attention to 161 statement of the prosecutrix recorded
on 12.05.2017 and submitted that no allegation of
rape has been made against co-accused Bhagwan
Singh; only allegation against the present applicants is
that they caught hold her hand and when she cried for
help, on this Bhojraj Singh squeezed her mouth and
thereafter, on seeing her father Madan Singh, both the
accused run away from the place of occurrence. Police
statement of Madan Singh and Sushilabai, father and
mother of the prosecutrix were recorded. In the police
statement of Madan Singh, which was recorded on
12.05.2017, he has not made any allegation of rape.
As per his statement, only allegation against the
present applicants is that he outraged modesty of the
prosecutrix by caught hold her hand. Sushilabai in
her police statement has not made any allegation of
rape against the present applicants.
On 18.05.2017, supplementary statement of the
prosecutrix was recorded in which allegation of rape
has been made against Bhagwan Singh. In
supplementary statement, she submitted that on
12.05.2017, she was not mentally fit, and therefore, no
allegation of rape was made. She also submitted that
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due to threat and fear, earlier she has not made any
allegation of rape against co-accused Bhagwan Singh.
Madan Singh and Sushilabai in supplementary
statement made allegation of rape against Bhagwan
Singh.
On 13.05.2017, 164 statement of the prosecutrix
was recorded by the Judicial Magistrate First Class,
Shajapur. As per paragraph No.1 of her court
statement, at the time of occurrence, she was in 9th
standard and her age was 14 years 11 months. In
paragraph No.2, she has not made any allegation of
rape and only allegation against the applicants is that
they caught hold her just to outrage her modesty.
On 18.05.2017, her supplementary 164 statement
was recorded by the Judicial Magistrate First Class,
Shajapur wherein allegation of rape has been made
against accused Bhagwan Singh. Bhagwan Singh is
neighbour of the prosecutrix and Bhojraj Singh is his
friend, who very frequently visit to the house of
Bhagwan Singh, therefore, the prosecutrix know both
of them.
Learned counsel for the applicants submits that
material improvement has been made by the
prosecutrix in her 161 statement, which was recorded
on 15.05.2017 and her 164 statement recorded on
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18.05.2017. In the FIR as well as her 161 and 164
statement which was recorded on 12th and 13th May,
2017, no allegation of rape has been made; and prays
that both the applications for grant of bail to the
present applicants be allowed and they be released on
bail.
In reply, learned Public Prosecutor for the non-
applicant / State of MP opposed the prayer and prays
for rejection of the applications.
As per MLC Report, age of the prosecutrix is 15
years; no external and internal injury was found on
the person of the prosecutrix. The doctor has opined
that definite opinion can be given after chemical anal-
ysis of the slide and swab. He also advised for age ver-
ification. As per certificate issued by Geeta Gyan
Mandir Madana, District Shajapur (MP) dated
20.05.2017, her date of birth is 05.06.2002.
Considering the fact that at the time of occur-
rence, the prosecutrix was minor 15 years of age, at
this stage, no case for grant of bail, as prayed for, is
made out; however, liberty is granted to applicant Ra-
jkumar @ Bhagwan Singh to renew the prayer after
recording Court statement of the prosecutrix.
With the aforesaid liberty, Miscellaneous Crimi-
nal Case No.6631/2017 is rejected.
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In respect of co-accused applicant Bhojraj Singh,
even if we accept the case of the prosecution in toto
i.e. police statement and 164 statement of the pros-
ecutrix which were recorded between 12.05.2017 to
18.05.2017, no allegation of rape has been made
against him; only allegation made against him is that
he squeezed her mouth, therefore, his case is entirely
different from the case of accused Rajkumar @ Bhag-
wan Singh, and therefore, prima facie case is made
out for grant of bail to applicant Bhojraj Singh.
On due consideration of the facts and circum-
stances of the case and the material evidence available
in the case diary, without expressing any opinion on
the merits of the case, Miscellaneous Criminal Case
No.6651/2017 is allowed. It is directed that applicant
Bhojraj Singh s/o Savai Singh shall be released
on bail subject to his furnishing a personal bond in the
sum of Rs.30,000/- (Rupees thirty thousand
only) with two solvent sureties in the like amount to
the satisfaction of the concerned JMFC/CJM for his
appearance before him or trial Court on all dates of
hearing as may be fixed in this behalf by the Court
concerned during trial.
This order will remain operative subject to com-
pliance of the following conditions: –
1.

The applicant will comply with all the terms and
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conditions of the bond executed by him / her;

2. The applicant will cooperate in the investigation /
trial, as the case may be;

3. The applicant will not indulge himself in extending
inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him / her from
disclosing such facts to the Court or to the Police Officer,
as the case may be;

4. The applicant shall not commit an offence similar to
the offence of which he is accused;

5. The applicant will not seek unnecessary adjourn-
ments during the trial.

Accordingly, Miscellaneous Criminal Case
No.6651/2017 stands allowed and disposed of.

C. c. as per rules.

(P.K. Jaiswal)
Judge
Pithawe RC

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