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Kapil Kushwah vs The State Of Madhya Pradesh on 12 January, 2024

Madhya Pradesh High Court

Kapil Kushwah vs The State Of Madhya Pradesh on 12 January, 2024

Author: Sanjeev S Kalgaonkar

Bench: Sanjeev S Kalgaonkar

1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON’BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 12 th OF JANUARY, 2024
CRIMINAL APPEAL No. 16104 of 2023

BETWEEN:-
KAPIL KUSHWAH S/O SHRI RAJU KUSHWAH, AGED 30
YEARS, OCCUPATION: LABOUR R/O BHURE BABA KI
BASTI JANAKGANJ LASHKAR DISTRICT GWALIOR
(MADHYA PRADESH)

…..APPELLANT
(SHRI AKHLESH KUMAR GUPTA- ADVOCATE)

AND
1. STATE OF MADHYA PRADESH STATION
THROUGH POLICE STATION BAHODAPUR
DISTRICT GWALIOR (MADHYA PRADESH)

2. F A R I Y A D I THROUGH POLICE THANA
B AHOD APUR DISTRICT GWALIOR (MADHYA
PRADESH)

…..RESPONDENT
(SHRI RAJENDRA SINGH YADAV- PUBLIC PROSECUTOR)

Th is appeal coming on for hearing this day, t h e court passed the

following:
ORDER

The appellant has filed this first criminal appeal under Section 14-(A)(2)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 being aggrieved by order dated 22.12.2023 passed by Special Judge
[Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989]
(hereinafter would be referred as to the ”Act of 1989”), Gwalior whereby bail
application under Section 439 of Cr.P.C. of appellant has been rejected.

Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 12-01-2024
06:05:48 PM
2

Learned Counsel for the State submits that the complainant has been
informed about filing of this appeal in compliance with mandate of Section 15-A
of the Act of 1989.

The appellant has been arrested on 07.12.2023 relating to FIR at Crime
No.1090 of 2023 registered at Police Station Bahodapur, District Gwalior for
offence punishable under Sections 376(2)(N), 323, 506 of IPC and Sections
3(2)(v), 3(2)(v-a), 3(1)(w)(ii) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 1989.

As per the case of prosecution, Vijay Dhanuk reported to Police Station
Bahodapur, District Gwalior on 22.11.2023 at 22:27 hours that his wife and two

children are missing since evening. His sister-in-law (bhabi) informed that his
wife might have gone with Kapil (present appellant). Missing person report
No.140/2023 was lodged. Prosecutrix was recovered at Police Station
Bahodapur along with her minor children. Prosecutrix alleged that she is
acquainted with Kapil Kushwah, who used to visit his in-laws in the
neighbourhood. She had matrimonial discord with her husband as her husband
was addicted of consuming liquor. On 26.11.2023, around 5:00 Kapil came to
her house and proposed to marry her. She went with Kapil on his motorcycle
along with her minor children. Kapil took them to a vacant house in Transport
Nagar, Gwalior. When her children went asleep, Kapil committed rape on her.
When she objected, Kapil assaulted her with fists and slapped her. Kapil
threatened to kill her brother. Next day morning, her father and brother came to
the room of Transport Nagar and brought her to Police Station Bahodapur. On
such allegations Police Station Bahodapur registered FIR at Crime No.1090 of
2023 for offence punishable under Sections 376(2)(N), 323, 506 of IPC and

Signature Not Verified
Sections 3(2)(v), 3(2)(v-a), 3(1)(w)(ii) of the Scheduled Castes and Scheduled
Signed by: AVINASH
BHARGAV
Signing time: 12-01-2024
06:05:48 PM
3

Tribes (Prevention of Atrocities) Act, 1989 against Kapil Kushwah (present
appellant). Applicant was arrested on 07.12.2023. He is in custody ever since.
Prosecutrix and appellant were forwarded for medico legal examination. No
injury was found on the body of the prosecutrix. No conclusive opinion is given
by Medical Officer. Statements of prosecutrix were recorded under Sections
161 and 164 of CrPC. Statements of other witnesses were recorded.
Investigation is underway.

Learned counsel for the appellant, in addition to the grounds mentioned
in the appeal, submits that appellant is falsely implicated in the matter due to
pressure of husband of prosecutrix. She had left her matrimonial home at her
own. They were residing together in live-in-relationship. Family members of
prosecutrix took her to Police Station Bahodapur and got this false FIR
registered against the appellant. No criminal antecedent is reported against the
appellant. Appellant is in private job and is sole bread earner of the family,
therefore, there is no likelihood of his absconsion leaving his family and home.
There is no likelihood of his tampering with the evidence as both the parties
belong to similar socio-economic status. No further custodial interrogation is
required. The trial would take time to conclude. Therefore, the appellant may be
extended benefit of bail.

P er contra, learned counsel for the State opposes the appeal on the

ground of gravity of alleged offence and prays for its rejection.

Heard learned counsel for the parties and perused the case diary.
Considering the arguments advanced by both the parties and overall
circumstances of the case but without expressing any opinion on merits of the
case, while setting aside order dated 22.12.2023 passed by Trial Court, this
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 12-01-2024
06:05:48 PM
4
Court is inclined to release the appellant on bail. Thus, the appeal is allowed.

Accordingly, it is directed that appellant Kapil Kushwah s hall be
released on bail in relation to Crime No.1090 of 2023 registered at Police
Station Bahodapur, District Gwalior for offence punishable under Sections
376(2)(N), 323, 506 of IPC and Sections 3(2)(v), 3(2)(v-a), 3(1)(w)(ii) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989,
upon furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One
Lac Only ) with one solvent surety in the like amount to the satisfaction of
the Trial Court, for compliance with the following conditions,: (For the sake of
convenience of understanding by accused and surety, the conditions of
bail are also reproduced in Hindi as under):-

(1) Appellant shall remain present on every date of hearing as may he
directed by the concerned court;

(1) vkosnd lacaf/kr U;k;ky; ds funZs’kkuqlkj lquokbZ dh izR;sd frfFk ij mifLFkr jgsxkA

(2) Appellant shall not commit or get involved in any offence of similar
nature;

(2) vkosnd leku izd`fr dk dksbZ vijk/k ugha djsxk ;k mlesa lfEefyr ugha gksxkA

(3)Appellant shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts of the case so as to
dissuade them/him/her from disclosing such facts to the Court or to the police
officer;

(3) vkosnd izdzj.k ds rF;ksa ls ifjfpr fdlh O;fDr dks izR;{k ;k vizR;{k :i ls
izyksHku] /kedh ;k opu ugha nsxk] ftlls ,slk O;fDr ,sls rF;ksa dks U;k;ky; ;k iqfyl vf/kdkjh
dks izdV djus ls fuokfjr gksA

(4)Appellant shall not directly or indirectly attempt to temper with the
evidence or allure, pressurize or threaten the witness;

Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 12-01-2024
06:05:48 PM
5

(4) vkosnd izR;{k ;k vizR;{k :i ls lk{; ds lkFk NsMNkM djus dk ;k lk{kh ;k
lkf{k;ksa dks cgykusQqlykus] ncko Mkyus ;k /kedkus dk iz;kl ugha djsxkA

(5) During trial, the Appellant shall ensure due compliance of provisions of
Section 309 of Cr.P.C. regarding examination of witnesses in attendance;

(5) fopkj.k ds nkSjku] mifLFkr xokgksa ls ijh{k.k ds laca/k esa vkosnd /kkjk 309 na-iz-la- ds
izko/kkuksa dk mfpr vuqikyu lqfuf’pr djsxkA

6.The appellant shall mark his presence in first week of every
month before the SHO, Police Station Bahodapur, District Gwalior till
conclusion of investigation.

This order shall be effective till the end of trial. However, in case of
breach of any of the precondition of bail, the trial Court may consider on merits
cancellation of bail without any impediment of this order.

The trial Court shall get these conditions reproduced on the
personal bond by the accused and on surety bond by the surety
concerned, if any of them is unable to write, the scribe shall certify that
he had explained the conditions to the concerned accused or the surety.

C.C. as per rules.

(SANJEEV S KALGAONKAR)
JUDGE
Avi

Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 12-01-2024
06:05:48 PM

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