The court granted bail based on the absence of DNA evidence linking the applicant to the crime, his lack of criminal history, and the hardship caused by prolonged custody.

This Fifth bail application has been filed by applicant under Section 439 of the Code of Criminal Procedure , 1973 for grant of bail in connection with Crime No.234/2021 registered at Police Station Chinore, Distirct Gwalior for offence punishable under Sections 376(D), 341, 323 and 506 of IPC. The applicant is in judicial custody since 12.11.2021. First application was dismissed as withdrawn by Coordinate Bench of this Court vide order dated 23/05/2022 passed in MCRC No.25453/2022, second application was dismissed as withdrawn by the Coordinate Bench of this Court vide order dated 23/01/2023 passed in MCRC No.1013/2023, third application was dismissed as witdrawan by the this Court vide order dated28/08/2023 passed in MCRC No. 38295/2023, fourth application was dismissed as withdrawn by this Court vide order dated 16/04/2024 passed in MCRC No.48916/2023. Statements of witnesses- prosecutrix (PW-1), her husband (PW-2), Radhe Shyam (PW-3), Dr. Manisha Chauhan (PW-4), Dr. Rakesh Rajput (PW-5), Head Constable Brijraj Singh (PW-6), Bhupendra Rawat (PW-7), Poonam Shrivastava (PW-8) and Deepak Gautam (PW-9) have been recorded and DNA report is submitted by the prosecution.

As per the case of prosecution, prosecutrix aged around 27 years reported to SHO of Police Station Chinore, District Gwalior that on 09.11.2021 around 07:30 in the evening, she was returning home after answering the nature's call. Ranjeet (applicant) and Sanjay intercepted her way and started manhandling her. Ranjeet and Sanjay slapped her, She sustained injury on her nose. Both the accused pushed her on the ground and committed rape on her. Accused threatened to kill her husband and fled away. She narrated the incident to her family members. On such allegations, Police Station Chinore registered FIR at Crime No.234/2021 for offence punishable under Sections 376(D), 341, 323 and 506 of IPC against Ranjeet Kushwah and Sanjay Kushwah. Prosecutrix was forwarded for medico legal examination. Statements of prosecutrix were recorded under Sections 161 and 164 of CrPC. Applicant was arrested on 12.11.2021. He is in custody ever since. Relevant seizures have been made. On completion of investigation, final report was submitted. The trial is underway.

Learned Counsel for the applicant, in addition to the grounds mentioned in the application, submits that applicant has falsely been implicated in this matter. Minor altercation is given the aggravated colour of prosecution for gang rape. Learned counsel referring to DNA report dated 18.03.2024 submits that the DNA profile taken from source material of the prosecutrix does not match with the DNA profile taken from source material of applicant Ranjeet and co-accused Sanjay Kushwah. Further, the report reveals that no male Y-DNA profile was found in cervical swab, vaginal swab and vaginal smear of the prosecutrix. The DNA report falsifies the allegation of gang rape. Learned counsel further submits that all witnesses of prosecution have been examined and the matter is fixed for examination of accused. There is no likelihood of interference in the trial. Learned counsel further submits that applicant is aged around 23 years and is Labourer by profession. There is no likelihood of absconsion leaving his family, home and profession. There is no likelihood of tampering with the evidence.

Applicant has already suffered custody of two years and eight months. No criminal antecedent is reported against the applicant. Co-accused Sanjay Kushwah has been extended benefit of bail vide order dated 11/07/2024 in M.Cr.C. No. 19358/2024 by this Court. Jail incarceration on false allegations is causing hardship to the applicant. Therefore, applicant may be extended the benefit of bail.

Per contra, learned Counsel for the State opposes the bail application on the ground of gravity of alleged offence and submits that trial is almost over, therefore, applicant may not be extended benefit of bail.

Heard learned counsel for the parties and perused th