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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

MCRC No. 18 of 2021

Parsottam Todar, S/o Ganguram Todar, Aged About 20

Years, R/o Village Dhaneli, Police Station Mujgahan,

Raipur, Tehsil and District Raipur Chhattisgarh.

---- Applicant

Versus

State of Chhattisgarh Through Station House Officer,

Police Station Aarang, District Raipur Chhattisgarh.

---- Non-applicant

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For Applicant

: Shri Awadh Tripathi, Advocate

For Non-applicant/State : Shri Shrikant Kaushik, P.L.

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(Proceedings through Video Conferencing)

Hon'ble Shri Justice Parth Prateem Sahu

Order on Board

09.07.2021

1.

This is first application filed under Section 439 of the Code of

Criminal Procedure, 1973 for grant of regular bail to

applicant, who is in custody since 28.10.2020 in connection

with Crime No.416 of 2020 registered at Police Station

Aarang, District Raipur, C.G. for commission of the offence

punishable under Sections 363, 366, 376 of Indian Penal

Code ('IPC') and Section 4 of the Protection of Children from

Sexual Offences Act, 2012 ('POSCO Act').

2.

Case of the prosecution is that, on 16.09.2020, at about

11.00 AM, when prosecutrix was going to her school,

applicant came on motorcycle and stated that he will marry

her and took her on his motorcycle to the house of his sister

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at Santoshi Nagar, Raipur where they stayed for one day. In

the night, applicant came to the room where the prosecutrix

was sleeping and committed forceful intercourse with her.

Initially, report was lodged by father of prosecutrix, based

upon which, crime under Section 363 of the IPC was

registered. After recovery of prosecutrix and recording her

statement, instant crime has been registered against the

present applicant for the offences mentioned therein.

3.

Shri Awadh Tripathi, learned counsel for the applicant submits

that applicant has been implicated in false and fabricated

case. He further submits that statement of prosecutrix is

recorded under Section 164 of Cr.P.C. wherein she has not

levelled any allegation against the present applicant;

attracting the provisions of Section 4 of the POSCO Act or

under Section 376 of IPC. It is contended that prosecutrix has

given statement under Section 161 of Cr.P.C. to the Police

only under the pressure of her parents. Applicant is in jail

since 28.10.2020, hence, he may be enlarged on regular bail.

4.

Shri Shrikant Kaushik, learned Panel Lawyer representing the

State while opposing the submissions made by learned

counsel for the applicant submits that specific allegation has

been levelled against the applicant of commission of forceful

intercourse with the prosecutrix in the house of his sister,

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however, he does not dispute the submission with regard to

statement recorded under Section 164 of Cr.P.C.

5.

Prosecutrix is present in person through District Legal

Services Authority, Raipur. She submits that applicant has

committed forceful intercourse with her. She further submits

that she had been given threat to assault her parents, she

gave statement under Section 164 of Cr.P.C. under threat.

6.

At this stage, Shri Tripathi, learned counsel for the applicant

submits that for the purpose of considering application under

Section 439 of Cr.P.C., material available in charge-sheet is

only to be looked into and statement of prosecutrix appearing

under notice as provided under Section 439(1)(a) of Cr.P.C. is

not to be considered. He placed reliance on the verdict

passed by Hon'ble Supreme Court in Dr. Dhruvaram

Murlidhar Sonar v. State of Maharashtra and Others

reported in (2019) 18 SCC 191, in which, Hon'ble Supreme

Court has quashed the First Information Report and charge-

sheet, in which, offences under Section 376(2)(b), 420, 34 of

IPC and Section 3