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Baldau Yadav vs The State Of Madhya Pradesh Thr on 20 March, 2018

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HIGH COURT OF MADHYA PRADESH
MCRC 10791/2018
Baldau Yadav Vs. State of MP

Gwalior, dtd. 20/03/2018
Shri Girish Kumar, counsel for the applicant.
Shri RVS Ghuraiya, Public Prosecutor for the respondent/

State.

Case Diary is available.

This is fourth application under Section 439 of CrPC for
grant of bail.

The applicant has been arrested on 22/04/2017 in
connection with Crime No.200/2017 registered at Police Station
Kotwali, District Guna for offence under Sections 363, 366,
376(d), 344, 506 of IPC and Section 5/6 of Protection of
Children from Sexual Offences Act (in short ” POCSO Act”].

It is submitted by the counsel for the applicant that the
prosecutrix, her mother and father have been examined and
they have not supported the prosecution case. The prosecutrix
has not made any allegation of rape against the applicant.
Copies of deposition sheets of the prosecutrix, her mother and
father have been placed on record. After going through the
deposition sheets of the witnesses, it is found that the
evidences of the prosecutrix and her mother were recorded on
22/12/2017, whereas the evidence of her father was recorded
on 29/12/2017 and considering certain admissions made in the
evidence, this Court had allowed the applicant to withdraw the
bail application on 16/1/2018. The matter was again argued by
the counsel for the applicant at length. This Court had ignored
certain admissions made by the witnesses while deciding the
third bail application but as the applicant is repeatedly filing the
bail application and every time, he is trying to impress the
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Court by saying that the prosecutrix and her parents have
turned hostile, therefore, the applicant may be granted bail,
therefore, it has become necessary to consider the conduct of
the witnesses as well as the conduct of the applicant and his
pairokar.

In the present case, two persons, namely, Baldau and co-
accused Sanjiv are facing trial for offence under Sections 363,
366, 376(d), 344, 506 of IPC and under Section 5/6 of POCSO
Act. As per the case diary statement of the prosecutrix, she had
alleged that she was taken by the present applicant to village
Koriya, where they met another co-accused Sanjiv. From village
Koriya, they went to Bhopal and at Bhopal, the applicant and
co-accused Sanjiv committed rape on her and thereafter, the
applicant came back after leaving the prosecutrix in the
company of the co-accused Sanjiv. Co-accused Sanjiv,
thereafter, committed rape on her on various occasions and he
used to call his friends also, who had committed rape on her.
Co-accused Sanjiv kept her at Bhopal for about a month and
during this period, he committed rape on her. On 22/4/2017, he
brought her back to Guna and threatened that in case if she
narrates the incident to anybody, then he would kill her. The
statement of the prosecutrix was recorded under Section 164 of
CrPC and in the said statement also, she had narrated the entire
incident but in different manner. By referring to the statement
of the prosecutrix recorded under Section 164 of CrPC, it is
submitted by the counsel for the applicant that the name of the
applicant was not mentioned by the prosecutrix in her
statement under Section 164 of CrPC, but the prosecutrix had
named one Balram Yadav as the co-accused. The prosecutrix in
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her evidence has stated that although she knows the applicant
prior to the incident, but the applicant did not commit any
offence with her. She had never gone along with the applicant.
Initially, she said that she does not know co-accused Sanjiv, but
thereafter she immediately changed her version and said that
co-accused Sanjiv had taken her to Bhopal, where he had
committed rape on her. She further stated that co-accused
Sanjiv had kept her at Bhopal for a month and thereafter, he
brought her back to Guna and left her at Bus stand Guna. While
leaving her, he had also extended a threat not to narrate the
incident to anybody, otherwise he would kill her. The prosecutrix
was cross-examined and in cross-examination, questions were
put to her with regard to allegation of rape, but she again
admitted that the applicant did not commit any offence.
However, in the Court, the prosecutrix identified the applicant as
well as the co-accused. She admitted that she had given a
statement before the Court under Section 164 of CrPC.
However, in cross-examination, she again reiterated that she
was raped by co-accused Sanjiv. She was cross-examined by
the counsel for the accused persons. She admitted that as her
compromise with co-accused Sanjiv could not take place,
therefore, her mother had instructed her to depose against co-
accused Sanjiv. Samina Bano, who is mother of the prosecutrix,
was also cross-examined and she turned hostile. So far as the
applicant is concerned, she had stated that she had lodged the
report against co-accused Sanjiv. In cross-examination by the
counsel for the accused themselves, Samina Bano made the
following admissions:-

^^;g dguk xyr gS fd esjh yM+dh ds lkFk dksbZ ?kVuk ugh gqbZA ;g
dguk lgh gS fd esjk vkjksih cynkm ls jkthukek gks x;k gSA ;g
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dguk lgh gS fd latho ds f[kykQ blfy;s c;ku ns jgs gSa fd mlls
jkthukek ugh gqvk gSA^^
Thus,it is clear that the accused persons had approached
the prosecutrix and her parents and by winning over the
witnesses, they compelled the witnesses to compromise the
matter and not to depose against the applicant. A specific
question was put to the counsel for the applicant that on what
conditions the compromise between the applicant and the
prosecutrix has taken place, then it was replied by counsel for
the applicant that since the applicant is in jail, therefore, he
does not have any information in this regard.

Be that whatever it may be.

One thing is clear that although the applicant is confined in
jail but since he has succeeded in bouncing upon the witnesses
and has succeeded in getting their evidence changed. The
applicant might have used either by pressure tactics or money
tactics to win over the witnesses. Under these circumstances,
this Court is of the considered opinion that the applicant who, in
spite of the fact, is in jail, has succeeded in winning over the
witnesses, is not entitled for bail on this ground only. What
would be effect of the evidence given by the prosecutrix, is yet
to be decided by the trial Court. Therefore, this Court is
refraining itself from making any further observations in that
regard. However, this Court cannot lose sight of the fact that
the prosecutrix as well as her mother has admitted that they
have not deposed against the applicant because a compromise
has been arrived at between the applicant and the witnesses.
One thing is clear, either the case from the very beginning is
false or the applicant has succeeded in winning over the
witnesses and under both the circumstances, this Court cannot
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close its eyes. Any further observations or any action against
the witnesses or the applicant or his pairokar, may adversely
affect their case which is pending before the trial Court. During
the course of arguments, it was submitted by the counsel for
the applicant that the applicant has already lost his father and
his mother is looking after his case.

Considering the peculiar facts and circumstances of the
case and in view of specific admissions made by the prosecutrix
and her mother, this Court is of the considered opinion, that it
would be appropriate for this Court to leave to the discretion of
the trial Court to take appropriate action against the applicant,
his mother and any other pairokar, who played an active role in
pressurizing the witnesses, as well as against the witnesses,
who have succumbed to the pressure applied by the applicant
and instead of making any complaint to the police or to the trial
Court, accepted the offers which may have been given by the
applicant and have changed their statements.

With the aforesaid observations, application is dismissed.
Office is directed to immediately send a copy of this order
to the trial Court.

(G.S. Ahluwalia)
Judge

MKB

Digitally signed by MAHENDRA
KUMAR BARIK
Date: 2018.03.21 17:49:45 +05’30’

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