IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT nd ON THE 2 OF MARCH, 2022 MISC. CRIMINAL CASE No. 47187 of 2021 Between:-

AVINASH SAHU S/O OMPRAKASH SAHU , AGED ABOUT 19 YEARS, OCCUPATION: UNEMPLOYED R/O 64 GALI NO. 1, PEEPAL CHAURAHA, KARAUND, NISHATPURA BHOPAL, DISTT.

BHOPAL (M.P.) (MADHYA PRADESH)

.....PETITIONER (BY SMT. INDU PANDE, ADVOCATE )

AND THE STATE OF MADHYA PRADESH THROUGH P.S. KOHEFIZA DISTT. BHOPAL MP (MADHYA PRADESH)

.....RESPONDENTS (BY Shri J. K. Jain, Asstt. Solicitor General for respondent.

Shri N.K. Sharma, learned counsel for objector.

Shri Sudeep Chatterjee, learned Govt. Advocate for State. )

This application has coming up for hearing on this day and the court passed the following:

ORDER

This is first bail application filed on behalf of the applicant under Section

439 of the Code of Criminal Procedure in connection with Crime No.276/2019 registered at Police Station Kehefiza, District Bhopal for the offence punishable under Sections 363, 366-A, 376(2), 376(DA), 302, 302/34 and 201 of the Indian Penal Code and Section 5/6 of POCSO Act.

As per the prosecution story, Avinash Sahu and Pushpa Vishwas were friends. Pushpa introduced the prosecutrix with Avinash Sahu. Pushpa Vishwas and Avinash Sahu planned to go to Manuabhan Tekri / Hanuman Tekri. All the three i.e. Avinash Sahu, Pushpa Vishwas and deceased prosecutrix went on Activa 5G to the said place. Pushpa Vishwas had called Justin Raj on his cell phone and asked him to come to M.T. ( Manuabhan Tekri). The trio reached the spot at 4:30 p.m. and all of them went near cave. Pushpa Vishwas left the prosecutrix in the company of Avinash Sahu and went ahead. After walking some distance she sat on a rock on hill. When prosecutrix and Avinash did not return for sometime, Pushpa Vishwas gave a call to Avinash Sahu and found that his cell phone was switched off. She also shouted their names but they were nowhere to be found. Avinash Sahu returned alone after sometime but prosecutrix was not with him. When Avinash Sahu returned he was sweating and out of breath. Justin Raj also reached there. Later on prosecutrix was searched and her dead body was found in the morning.

Learned counsel for the applicant submitted that applicant has falsely been implicated in the case. First information report was lodged against unknown person and later on applicant has falsely been implicated in the case. Applicant is a young boy of 19 years and he is in jail since 1.5.2019. It is further submitted that there is contradictory DNA report of Investigating Agency, therefore, applicant cannot be said to have committed the crime. Co-accused in the case, namely Justin Raj has been enlarged on bail vide order dated 11.8.2021 passed in M.Cr.C No.31706/2021. It is submitted that DNA report of applicant is negative. In these circumstances learned counsel for the applicant prays for grant of bail to applicant.

Learned counsel for respondent/CBI opposed the application for grant of bail. It is submitted that DNA report against applicant was positive. Learned counsel for the respondent/CBI submitted that aforesaid facts clearly points out that Avinash Sahu was involved in committing the murder and rape of deceased coupled with positive DNA report and, therefore, application for grant of bail to applicant be dismissed.

Heard learned counsel for the parties.

As per postmortem report deceased died due to shock and hemorrhage resulting in injury on head and there was evidence of sexual violence. As per autosomal STR DNA profile received from source of deceased i.e. vaginal swab slide and pubic hair (Exhibit H, I & J) and autosomal STR DNA profile received from Avinash Sahu's left hand nail scraping (Exhibit V) are found to be same and DNA obtained from blood sample of Avinash also matches from right and left hand nails scrapping from source of deceased.

Considering the statement of Pushpa and DNA report points towards involvement of applicant in Crime, therefore, bail a