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Ashwani vs The State Of Madhya Pradesh on 12 November, 2018

HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.7636/2018
(ASHWANI Vs THE STATE OF MADHYA PRADESH ANO.)

Criminal Appeal No.8177/2018
(MUKESH FUNDANE Vs THE STATE OF MADHYA PRADESH ANO.)

1

Jabalpur, dated: 12.11.2018

Shri Sanjay Sharma, learned counsel for the appellant in
Criminal Appeal No.7636/2018.
Shri S.K. Soni, learned counsel for the appellant in
Criminal Appeal No.8177/2018.
Shri Manish Awasthy, Government Advocate for the
respondent No.1/State.

None for the victim.

Since both these Criminal Appeals have arisen from the
same Crime Number (Crime No.144/2018), they have been
analogously heard and are being disposed of by this common
order.

Heard on these appeals under Section 14-A of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 filed on behalf of the appellants in Crime No.144/2018
registered by Police Station Malajkhand, District Balaghat under
Sections 363, 366 and 376 (2) (n) of the Indian Penal Code,
Section 3/4, 5 and 6 of the Protection of Children From Sexual
Offences Act, 2012 and Sections 3 (1) (w) (i) and 3 (2) (v) (a) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.

These appeals are directed against the orders dated
25.09.2018 and 28.09.2018 passed by the Court of Special Judge,
Scheduled Caste/Scheduled Tribe (Prevention of Atrocities), Act,
Balaghat in Bail Application No.144/2018 and Unregistered Bail
Application, respectively.

As per the prosecution case, on 06.09.2018 the prosecutrix,
aged about 17 years 10 months have been found disappeared from
her native place at Nevargaon, Birsa under the jurisdiction of

Digitally signed by TAJAMMUL
HUSSAIN KHAN
Date: 13/11/2018 21:03:55
HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.7636/2018
(ASHWANI Vs THE STATE OF MADHYA PRADESH ANO.)

Criminal Appeal No.8177/2018
(MUKESH FUNDANE Vs THE STATE OF MADHYA PRADESH ANO.)

2
Police Station Malajkhand, District Balaghat. Her father Pawan
Singh Maravi lodged a report against unknown persons. On that
basis offence under Section 363 of IPC has been registered. On
11.09.2011 the prosecutrix has been recovered from the Railway
Station, Raipur and she has been handed over to her parents.
During investigation appellants Ashwani, Mukesh Fundane and
other co-accused person have been arrested. On interrogation
appellant Mukesh Fundane has admitted that he along with
appellant Ashwani had kidnapped the prosecutrix on his
motorcycle and had taken the prosecutrix to Balaghat and
thereafter to various other places.

Learned counsel for the appellants have submitted that the
appellants are innocent and have not committed any offence. They
have been falsely implicated in the crime. It is also submitted that
the prosecutrix was having love affair with appellant Ashwani.
Appellant Mukesh Fundane is only helping the appellant Ashwani
in taking away the prosecutrix. It is also submitted that as per
medical report there is no internal or external injury has been
found on the person of the prosecutrix. It is further submitted that
the appellants are permanent residents of the addresses shown in
the appeals. There is no chance of their absconding or tampering
with the witnesses. They are ready to furnish adequate surety and
shall abide by all the directions and conditions which may be
imposed upon them. It is also submitted that the appellants have
been in custody since 13.09.2018; therefore, it has been prayed
that the appellants be released on bail.

Learned Government Advocate for the respondent-State on
the other hand has opposed the prayer for grant of bail.

On perusal of the case diary, it seems that the statements of
prosecutrix under Sections 161 of Cr.P.C. and 164 of Cr.P.C. have

Digitally signed by TAJAMMUL
HUSSAIN KHAN
Date: 13/11/2018 21:03:55
HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.7636/2018
(ASHWANI Vs THE STATE OF MADHYA PRADESH ANO.)

Criminal Appeal No.8177/2018
(MUKESH FUNDANE Vs THE STATE OF MADHYA PRADESH ANO.)

3
been recorded. Prosecutrix seems to be on the verge of becoming
major. In her statements she has stated that she had been taken by
the appellants and other co-accused persons forcefully but she has
also categorically denied that she has been sexually assaulted
during the period in which she has accompanied with the
appellants and other co-accused persons. It is pertinent to mention
that in her statement recorded under Section 164 of Cr.P.C. she has
not narrated anything regarding her said kidnapping and willful or
forceful intercourse.

However, keeping in view the facts and circumstances of
the case in their entirety, particularly the facts as pointed out by
the learned counsel for the appellants, allegation made against the
appellants and the period of detention of the appellants, in the
opinion of this Court, the appellants deserve to be released on bail.

Consequently, these appeals for bail under Section 14-A of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 are allowed and the impugned orders are set
aside.

It is directed that the appellants Ashwani and Mukesh
Fundane shall be released on bail on furnishing a personal bond
in the sum of Rs.30,000/- with one solvent surety each in the like
amount to the satisfaction of the trial Court for his appearance
before that Court on all dates fixed in the case and for complying
with the conditions enumerated under Section 437 (3) of the
Cr.P.C.

Certified copy as per rules.

(Mohd. Fahim Anwar)
Judge
taj.

Digitally signed by TAJAMMUL
HUSSAIN KHAN
Date: 13/11/2018 21:03:55

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