Madhya Pradesh High Court
Smt Malti Dubey vs The State Of Madhya Pradesh on 2 July, 2025
Author: Anand Pathak
Bench: Anand Pathak
1 CRA-6666-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 6666 of 2024
(SMT MALTI DUBEY AND OTHERS Vs THE STATE OF MADHYA PRADESH )
Dated : 02-07-2025
Shri Ashfaq Khan- learned counsel for appellants.
Dr. Anjali Gyanani- learned Public Prosecutor for respondent-State.
1. Heard on IA No.2838 of 2025, second application under Section 389 (1) of CrPC moved on behalf of appellant No.1-Smt. Malti Dubey and IA No. 2865 of 2025 , first application under Section 389(1) Cr.P.C moved on behalf of appellant No.2-Shivam Dubey seeking suspension of jail sentence and grant of bail.
2. Vide judgment of conviction and order of sentence dated 10/02/2024 passed by 11 th Additional Sessions Judge/Special Judge, (POCSO Act), Gwalior (M.P.) in S.T. No. 531/2019 whereby both appellants have been convicted and sentenced as under:-
Section Imprisonment Fine with default stipulation 370(1)(4) IPC 10 Years' RI Rs.10,000/- 5(L)/6/17 of 25 Years' RI Rs. 10,000/-
POCSO Act
3. According to the prosecution case, accused- Sanju Dubey was residing near the house of prosecutrix (P.W.1). The said accused in November, 2015 used to come in the house of prosecutrix and used to bear expenses of the house of prosecutrix. On 05/02/2016, when prosecutrix (P.W.1) was alone at home, accused committed rape with her and on further Signature Not Verified Signed by: PRACHI MISHRA Signing time: 7/3/2025 6:47:08 PM 2 CRA-6666-2024 occasions, he many times committed rape with her. When mother of prosecutrix- Smt. Malti Dubey (appellant No.1 herein) came back, she narrated the incident, but her mother scolded and quiet her. In the year 2017, accused brought mother of prosecutrix, brothers of prosecutrix -Shivam Dubey (appellant No.2 herein) and Shakti Dubey and sister- Kanchan Dubey to Gwalior, where he gave Rupees Two- Three thousand to mother of prosecutrix and they all went for shopping. Accused took prosecutrix to Saraswati Bhojnalaya for taking rented room, where he committed rape with her. Similarly, in the year 2018 on the occasion of Deepawali, accused- Sanju Dubey took her family along with prosecutrix to Gwalior wherein again they had lunch outside the Railway Station and he had given Rupees Five thousand to mother of prosecutrix. Thereafter, her mother sent her with accused and thereafter, accused took prosecutrix to Saraswati Bhojnalaya where he committed rape with her. Accused and brother of prosecutrix threaten to kill her. Thereafter, mother of prosecutrix started putting pressure upon prosecutrix to marry with Sanju Dubey for which, he promised to give Rupees Five Lacs to her mother, but she denied. On 04/03/2019, prosecutrix along with her mother, sister- Kanchan Dubey, accused- Sameer and Shanu went to Ajmer via train from Datia. They left prosecutrix with accused Sameer, who committed rape upon her and gave Rupees Twenty Thousand to her mother. Thereafter, coming back from Ajmer, the prosecutrix immediately went to her aunt (बुआ) in District Jalaun. When mother of prosecutrix tried to reach to her daughter, aunt ( बुआ) of prosecutrix refused to sent her back with her mother. On 03/09/2019, prosecutrix with her aunt Signature Not Verified Signed by: PRACHI MISHRA Signing time: 7/3/2025 6:47:08 PM 3 CRA-6666-2024 (बुआ) and PW-8, sister-in-law (Bhabhi) appeared before the High Court. On 06/09/2019, prosecutrix again appeared before the High Court and her statement was recorded. On 07/09/2019, prosecutrix filed written complainant (Ex.P.1) upon which, Police Station Mahila Thana Padav registered FIR at Crime No.197/2019 for offence punishable under Sections 370, 376, 372, 373, 506 and 354 of IPC and Sections 3, 4, 5, 6 and 17 of POCSO Act against accused Sanju @ Rahul Dubey, accused- mother of prosecutrix- Smt. Malti Dubey (appellant No.1), accused- brother of prosecutrix- Shivam Dubey (appellant No.2), co-accused Sameer and Shanu Khan. After completion of investigation, charge sheet was filed and case was committed to the Special Court (POCSO) Act. After conclusion of trial, the Trial Court convicted the present appellants and sentenced, as aforesaid.
4. It is submission of learned counsel for appellants that Trial Court erred in convicting the appellants and awarding the jail sentence. It is submitted that judgment of conviction and order of sentence passed by the Court below is illegal, arbitrary and against the material evidence available on record. It is further submitted that prosecutrix (P.W.1) turned hostile during her cross- examination with respect to present appellants, particularly, on account of involvement of present appellants in the alleged crime. Defence witnesses, father of prosecutrix- Ramesh Dubey (D.W.1) and sister of prosecutrix- Kanchan Dubey (D.W.2) also did not support prosecution case. There are many contradictions and omissions in the statements of witnesses, therefore, their evidence is not reliable. FIR was lodged after delay and no plausible explanation has been given by the prosecution. Appellants have suffered Signature Not Verified Signed by: PRACHI MISHRA Signing time: 7/3/2025 6:47:08 PM 4 CRA-6666-2024 three years of incarceration as pre and post trial confinement. Hearing of appeal shall take some time. Appellants are ready to abide by all the conditions as imposed by this Court. Hence, prayed for suspension of jail sentence and grant of bail.
5. On the other hand, learned Counsel for the State by supporting the impugned judgment of conviction and order of sentence, opposed the contentions of appellants.
6. Heard learned counsel for parties and perused the record.
7. After hearing the arguments advanced by learned Counsel for the parties, looking to the overall facts and circumstances of the case, nature and gravity of alleged offence, age of minor prosecutrix as well as going through the evidence of prosecutrix (P.W.1) and also looking to the short period of custody as suffered by present appellants, this Court does not find it to be a fit case for suspension of jail sentence and grant of bail to the present appellants at this stage. Accordingly, I .A. Nos. 2838 of 2025 and 2865 of 2025, stand rejected.
8. Observations on facts, if any, are only for the purpose of deciding the instant IAs and shall have no bearing on the merits of the appeal.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Prachi
Signature Not Verified
Signed by: PRACHI MISHRA
Signing time: 7/3/2025
6:47:08 PM