Madhya Pradesh High Court
Shakil vs The State Of Madhya Pradesh on 29 March, 2022
Author: Vivek Rusia
Bench: Amarnath Kesharwani, Vivek Rusia
-1-
The High Court of Madhya Pradesh : Bench At Indore
DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA &
HON'BLE MR. JUSTICE AMARNATH (KESHARWANI)
Criminal Appeal No.6871/2018
Shakil S/o Salim v/s The State of Madhya Pradesh
Indore, dated 29.03.2022
Shri Palash Choudhary, learned counsel for the
appellant.
Shri Kamal Kumar Tiwari, learned Government
Advocate for the respondent / State.
Heard on I.A. No.19928/2021, which is first application under Section 489(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of sole appellant - Shakil S/o Salim.
The appellant suffered conviction and sentence as under:-
CONVICTION SENTENCE
Section Act Imprisonment Fine if Imprisonment
deposited in lieu of fine
details
363 IPC 5 years' R.I. Rs.5,000/- 3 months
366 IPC 7 year's R.I. Rs.5,000/- 3 months
376(2)(I) IPC 10 years' R.I. Rs.10,000/- 6 months
3(2)(v) SC & ST (PC) Life Rs.10,000/- 6 months
Act Imprisonment
3(a)/6 POCSO Act 10 years' R.I. Rs.10,000/- 6 months
As per prosecution story, on 22.02.2017, Rahul along with her mother at about 3:07 pm went to the Hatpiplaya Police Station and lodged a report that at 5:30 pm, the prosecutrix has -2- gone somewhere, she was searched but could not be found. They have an apprehension that Shakil S/o Salim Khan with an intention of marry eloped her. The information was recorded vide Crime No.53/2017 under Section 363 and 366 of the IPC. On the same day, the prosecutrix was recovered and she disclosed that this appellant took her Shivpur Mundla agricultural field forcefully on his motorcycle and committed rape upon her. She was medically examined and offence under Sections 376 of IPC, 3/4 of POCSO Act & Section 3(2)(5) of Schedule Caste & Schedule Tribe (Prevention of Atrocities) Act were added. The investigation was completed and appellant was arrested on 27.02.2017. The scholar register and caste certificate were recovered. After completing the investigation, the charge- sheet was filed. The charges were read out which he denied and pleaded for trial. After evaluating the evidence came on record, the appellant has been convicted for the aforementioned offences.
Learned counsel for the appellant submits that entire story is a concocted story and the F.I.R. is doubtful. As per the F.I.R., the incident took place on 21.02.2017 near about 5:30 pm and the F.I.R. was registered on 22.02.2017 at 03:19 pm. As per the Panchnama, the prosecutrix has already been recovered on 22.02.2017 at about 8:10 pm. There is overwriting in the date mentioned in the Panchnama (Ex-P/3). Before registration of -3- F.I.R., the prosecutrix was with the police which makes the F.I.R. doubtful. It has been further submitted that before registration of F.I.R., the prosecutrix has already been handed over to the mother vide Supurdginama (Ex-P/5). As per the medical report, no definite opinion was given by the doctor. The date of birth mentioned in the scholar register has not been supported by any documentary evidence, therefore, the trial Court has wrongly held that she was minor at the time of commission of offence. It is also submitted that marriage of prosecutrix with Arjun held on 24.05.2017 as per Ex-D/1, which she denied in her cross- examination. Arjun has been examined as D.W-1 admitting the marriage and recording of date of birth in ration card, samagra ID which establishes that prosecutrix was major, hence, remaining jail sentence of this appellant may be suspended.
Learned Government Advocate for the respondent / State opposes the application by submitting that in view of the statement of prosecutrix (P.W-3), Rahul (P.W-1), no case for suspension is made out in the matter. As per date of birth recorded in the scholar register, she was minor at the time of commission of offence.
Statement recorded before the Magistrate on 22.02.2017 under Section 164 of the Cr.P.C. is available on record in which she has specifically stated that the appellant called her near petrol pump, Dewas and disclosed his intention of marriage, -4- thereafter took her to the agricultural field where he committed rape upon her. Thereafter, he went to the house leaving the prosecutrix alone in the night and the police came there and took her to the police station. No definite opinion regarding rape has been given in the medical report. Before registration of missing person report as well as F.I.R., the prossecutrix was already with P.W-1 and P.W-5. P.W-1 brother and P.W-5 mother of the prosecutrix have been declared hostile. P.W-7, teacher of the school who brought the scholar register has stated that the date of birth was disclosed by the father of the prosecutrix from his diary and no documents issued by Hospital, Municipal Corporation or Panchayat was produced. Dr. Vishnulata Uikey (P.W-9) has stated that no definite opinion can be given regarding rape and no injury was found on the body of the prosecutrix.
Keeping in view the facts and circumstances of the case in totality and fact that the appellant has undergone more than five years of sentence, we deem it proper to suspend the remaining jail sentence of the appellant. Accordingly, I.A. No.19928/2021 stands allowed.
The execution of remaining jail sentence of appellant - Shakil S/o Salim is hereby suspended and it is ordered that the appellant be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only) with -5- one solvent surety of the like amount to the satisfaction of the trial Court and subject to depositing the fine amount (if not already deposited) with a further direction to appear before the concerned Trial Court on 30.09.2022 and also on such other dates, as may be fixed by the Trial Court in this regard during the pendency of this appeal.
Certified copy, as per Rules.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.03.31 18:07:53 +05'30'