Madhya Pradesh High Court
Ajay Singh vs The State Of Madhya Pradesh on 15 September, 2022
Author: Sujoy Paul
Bench: Sujoy Paul
1
Criminal Appeal No.3190 of 2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
Cr.A.No.3190 of 2020
(AJAY SINGH VS. THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 15.09.2022
Shri Sankalp Kochar, learned counsel for the appellant.
Shri Yogesh Dhande, learned Government Advocate for the
respondent/State.
I.A.No.6187/2020, an application filed under Section 389 of Cr.P.C. for suspension of sentence and grant of bail to the appellant Ajay Singh is taken up.
The appellant has been convicted under Section 450 of IPC and sentenced to undergo R.I. for 3 years with fine of Rs.2,000/-, under Section 376(1) of IPC and sentenced to undergo for life imprisonment with fine of Rs.3,000/-, under Section 3(1)(w)(1) of SC/ST Act and sentenced to undergo R.I. for 5 years with fine of Rs.2,000/- and under Section 3(2)(V) of SC/ST Act and sentenced to undergo for life imprisonment with fine of Rs.3,000/-, with default stipulations.
The prosecution case in the nutshells is that the prosecutrix is a member of Scheduled Castes while the appellant is not a member of Scheduled Castes and Scheduled Tribes. At the time of incident, the age of the victim was below 16 years. On 29.11.2018 at 6:30 p.m., the parents and brother of victim had 2 Criminal Appeal No.3190 of 2020 gone to work. She was alone in her house. The appellant being a teacher and also coaching teacher of victim entered the house of the victim and shut the door. Thereafter, he committed rape upon her. When she cried, her relatives and neighbours came there and rescued her. After that, someone telephonically intimated the incident to the Police. The Police came there and arrested the appellant.
Learned counsel for the appellant submits that the trial Court has not found proved that at the time of incident, the victim is below the age of 18 years. There are material contradictions and omissions in the statement of witnesses. Learned counsel for the appellant also submits that due to some enmity, the appellant has been falsely implicated in the case. Statement of victim's not supported by MLC and statement of Doctor Namita Garg (PW-8). Though, DNA report (Ex.P/17) supported the case of prosecution but sampling, sealing and safe custody of semenand blood samples undergarments of victim is not prove properly.
Learned counsel for the appellant has relied upon the judgment passed by Division Bench of this Court in the case of Santosh Markam Vs. State of Madhya Pradesh (Criminal Appeal No.1579/2020) delivered on 05.09.2022 and Jitendra Vs. State of Maharashtra 2017 SCC Online Bom 8600. Learned counsel for the appellant further submits that the appellant is in custody since 30.11.2018 and hearing of this appeal is not possible in the near future, 3 Criminal Appeal No.3190 of 2020 therefore, he prays that jail sentence of the appellant may be suspended and he be enlarged on bail.
Per contra, Shri Yogesh Dhande, learned Government Advocate has opposed the submission to the extend of objection.
Division Bench of this Court in case of Santosh Markam (Supra) in Paragraph No.60 has observed as under :-
60. In Mahmood V. State of U.P., 1976 (1) SCC 542, the seal put on the sealed box was the seal of an Officer of the prosecution. No signature of witnesses were obtained on the sealed packet. Seal was not handed over by the prosecution to the Sarpanch or any respectable person of the village. Since there was a possibility of tampering with the parcel which was containing the seal of Investigating Officer, the prosecution story was disbelieved by the Supreme Court. The relevant paras reads as under:-
15. Further, the investigator did not take all the necessary precautions which could be taken to eliminate the possibility of fabrication of this evidence, or to dispel suspicion as to its genuineness. Admittedly he sealed the box with his own seal which thereafter remained with him throughout. He did not take the signatures of the witnesses on the parcel containing the gandasa. He did not after sealing the parcel entrust his seal to the Sarpanch or any other respectable person of the village. According to the prosecution the fingerprints found on the gandasa could possibly be bloodprints and that the blade of the gandasa was all smeared with human blood. But this gandasa was never sent to the Chemical Examiner or the serologist. No explanation of the same is forthcoming. This being the case, the contention of Mr. R.K. Garg at the Bar, that the gandasa, Ex.1, or smear of the alleged blood on it was not 4 Criminal Appeal No.3190 of 2020 sent to the Chemical Examiner for fear of the fabrication being detected and exposed, cannot be rejected outright.
17. It is to be noted further that the same constable (Muneshwar Dixit, PW 18) collected the specimen fingerprints, presumably from the Investigating Officer, and the parcel containing the gandasa, Ex. 1, from the Sadar Malkhana, on April 21 and delivered it at the Scientific Section, Lucknow on April 22. There was thus a possibility of the Investigating Officer having an access to the parcel containing the gandasa on April 21.
Such a possibility has not been positively excluded by the prosecution.
(Emphasis Supplied) In the case of Jitendra (Supra) DB of the High Court of Bombay at Nagpur in Paragraph No.22 has held thus:-
22. Thus, the clinching nature of the evidence in the form of DNA analysis report is undeniable and it has to be accepted as a very strong proof of the involvement of the accused in the crime. But, as observed by the Hon'ble Supreme Court in the above mentioned judgment, if the DNA report is absolutely dented and it is established that there has been no quality control or quality assurance and if the sampling has been improper and that there is evidence to show tampering of the samples, the DNA test report would be unsafe to be made a basis for convicting the accused.
We have heard both the parties at length and perused the record. On perusal of the record, it appears that the incident has been reported to the Police at the same day within 4 hours against the appellant. The victim's supported the case of prosecution. Cousin of victim (PW-6) had seen the appellant entering in the house of victim at the time of incident. Cousin of 5 Criminal Appeal No.3190 of 2020 victim (PW-5) had also seen the incident and rescued the victim from the appellant. At the time of incident, the appellant has got injured. During medical examination, Dr. Deepak Tiwari (PW-10) had also found four injuries on the body of appellant. DNA report has also supported the case of the prosecution.
At this backdrop, we are not inclined to suspend the jail sentence of the appellant.
Consequently, I.A.No.6187/2020 is dismissed.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
vai
Digitally signed by VAISHALI AGRAWAL
Date: 2022.09.19 10:28:22 +05'30'