Madhya Pradesh High Court
Pankaj vs The State Of Madhya Pradesh on 21 March, 2023
Author: Rohit Arya
Bench: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 2883 of 2021
(PANKAJ Vs THE STATE OF MADHYA PRADESH)
Dated : 21-03-2023
Shri R.P. Singh, learned counsel for the appellant.
Shri A.K. Nirankari, learned Public Prosecutor for the respondent-Sate.
Heard on I.A. No.2299/2023, which is third application under Section 389 (1) Cr.P.C. filed on behalf of the appellant. His earlier applications were dismissed as withdrawn vide order dated 28/02/2022 and 08/04/2022.
Appellant stands convicted for the offence under Section 449 of IPC and sentenced to undergo 05 years RI with fine of Rs.1000/-, under Section 376 (D) IPC r/w Section 511 of IPC and sentenced to undergo 10 years RI with fine of Rs.2000/- and under Section 302 of IPC and sentenced to undergo LI with fine of Rs.5000/- with default stipulation respectively vide judgment of conviction and order of sentence dated 12/02/2021 passed by IInd Additional Judge, District-Ashoknagar to the Court of Ist Additional District and Sessions Judge, Ashoknagar in Sessions Case No.49/2020.
Appellant so far has undergone five years and six months incarceration including the period undergone during trial as per submission of learned counsel for the appellant.
As per prosecution story, a Dehati Nalsi was written down at the instance of a 14 years old minor girl (prosecutrix) in burned condition. It was alleged that at about 1:30 in the afternoon on 25/05/2016, while prosecutrix was alone at home and her mother had gone out for labour work and her sister Uprajita and Rajkumari had gone to neighbour's house for play, at that time, appellant/ accused Pankaj Ahirwar, juvenile Ala Ahirwar and one other person entered the 2 house and insisted her for sexual abuse. Despite her resistance, she was sexually abused forcibly. While she was trying to run away, she was caught hold by the accused Pankaj who has splashed kerosene oil kept in the container at her home and set her ablaze. On hearing her screaming, her grand-mother Meva Bai and both the sisters came on spot and later on her uncle Santosh came there and on his call, 108 Ambulance vehicle arrived. Prosecutrix was rushed to Mungawali Hospital. On the basis of aforesaid, a Dehati Nalsi was registered at Police Station Kotwali at Crime No.0/16 under Section 307, 376/511 and 34 of IPC and under Section 7/8 of POCSO Act. Prosecutrix died on 8th day of her treatment. Accordingly, FIR was registered at Crime No.114/2016.
During course of investigation, incriminating material was collected. Statement of the prosecutrix was recorded under Section 161 Cr.P.C. Thereafter, upon completion of investigation, challan was filed and the case was committed to the Sessions Court for trial. The Sessions Court upon critical evaluation of the evidence placed on record particularly, dying declaration of the prosecutrix and Dehati Nalsi, convicted and sentenced the appellant as referred above.
Learned counsel for the appellant while criticizing the impugned judgment interalia submitted that the prosecutrix had died after 07 days of the incident, therefore, the alleged death cannot be either connected to or attributed to the present appellant. Though she was alleged to have suffered 100% burn injury but still it is said that she has recorded her dying declaration and therefore, the dying declaration is fabricated document. Appellant is innocent and therefore, deserves to be enlarge of bail by way of suspending his remaining jail sentence.
Per contra, learned counsel for the respondent/ State while supporting 3 the impugned judgment submits that this is the heinous crime of its own kind where miscreants present appellant and other persons entered the house of a 14 years minor girl when she was alone at home. She was forcibly sexually abused despite her resistance and thereafter she was set ablaze by splashing kerosene oil on her entire body. That apart, prosecutrix herself has lodged the Dehati Nalsi and recorded her dying declaration naming each of the accused persons including present appellant. Driver of the 108 ambulance vehicle has also deposed stating that prosecutrix had narrated the same story to him while she was taken to the hospital by the ambulance. No other evidence was required for conviction of the appellant for such a heinous crime and therefore, the Sessions Court has rightly convicted and sentenced the appellant.
Upon hearing learned counsel for the parties, though this Court refrains from commenting upon the rival contention so advanced touching merits of the case, but regard being had to the gravity and intensity of the offence, degree of involvement and the effect thereof to the society at large prima facie does not entitle the appellant for extension of benefit of suspension of sentence. Consequently, I.A. No.I.A. No.2299/2023 is dismissed.
Before parting with the case, it is considered apposite to mention that observation, if any on facts shall have no bearing on the pending appeal.
(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)
JUDGE JUDGE
vc
VARSHA
CHATURVEDI
2023.03.21
18:06:17 +05'30'