Madhya Pradesh High Court
Shahrukh Khan vs The State Of Madhya Pradesh on 18 March, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 18 th OF MARCH, 2024
CRIMINAL APPEAL No. 2417 of 2020
BETWEEN:-
SHAHRUKH KHAN S/O SHRI SHAFI KHAN, AGED ABOUT
21 YEARS, OCCUPATION: LABOUR R/O VILLAGE
UBAIRA POLICE STATION SENDRI TEHSIL NIWARI
DISTRICT TIKAMGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRADEEP NAVERIA - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION SENDRI TEHSIL NIWARI DISTRICT
TIKAMGARH (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SANTOSH YADAV - GOVERNMENT ADVOCATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure against the judgment dated 05.02.2020 passed in Special Case No.50/2020 by the Special Judge (The Protection of Children from Sexual Offences Act (POCSO), 2012), Tikamgarh by which he was convicted for the offence punishable under Section 3/4 of the POCSO Act and sentenced to R.I. for ten years with fine of Rs.4000/-. In default of payment of fine amount, an additional R.I. for three months.
2. Learned counsel appearing for appellant submitted that he is not Signature Not Verified Signed by: SHABANA ANSARI Signing time: 5/30/2024 1:19:01 PM 2 challenging the conviction part of the judgment passed by the trial Court. It is submitted that appellant is a young man aged about 21 years and is in jail for long time. He may be released on probation under Probation of Offenders Act, 1958 or Court may exercise its power under Section 360 of the Code of Criminal Procedure. As per prosecution story, appellant is said to have committed rape on prosecutrix without her consent and against her will.
3. Learned Government Advocate appearing for the State supported the impugned order passed by the trial Court. Appellant has committed heinous offence. In this circumstances appeal filed by appellant may be dismissed.
4. Heard learned counsel for the parties.
5. Appellant is convicted under Sections 3 and 4 of the POCSO Act which is punishable with Rigorous imprisonment for a period of ten years. Benefit of Section 360 of the Cr.P.C. can be extended in public interest and in interest of convict, if he has been punished with imprisonment for term of seven years or less, if convict is over 21 years of age. In this case, appellant is convicted for period of 10 years and over 21 years of age, therefore, benefit under Section 360 of the Cr.P.C. cannot be extended to him. Probation of Offenders Act is applicable in cases where a person is under 21 years of age and is convicted with death or life imprisonment. Neither of two conditions exist in favour of appellant, therefore, Section 360 of the Code of Criminal Procedure or Section 3 of the Probation of Offenders Act, 1958 will not be attracted in this case. So far as the provision of Probation of Offenders Act is concerned, Court has power to release a convict on probation under Section 3 of Act of 1958, if he is convicted for the period of two years and fine or with both. Court can exercise its power under Section 4 of the Probation of Offenders Act, if a person is found guilty of an offence not punishable with Signature Not Verified Signed by: SHABANA ANSARI Signing time: 5/30/2024 1:19:01 PM 3 death or imprisonment for life. Bar of offences having punishment of seven years is not there under Section 4. But Court has to form opinion regarding nature of offence, character of offender while exercising its power under Section 4 in interest of offender and of public.
6. There is no provision under POCSO Act which bars applicability of Probation of Offenders Act, 1958. Appellant will fall within Section 4 of said Act. Court has to form an opinion whether it is in public interest and in interest of convict to release him on probation.
7. Now it is to be seen by the Court weather release of an Offender will be in his interest and also in interest of public.
8. Perused the deposition of prosecutrix (PW-1). Prosecutrix has turned hostile before the Court. She has denied the fact regarding rape committed by the accused. Sister of prosecutrix (PW-2) and other witnesses i.e. (PW-3), (PW-4), (PW-5), (PW-6) and (PW-7) who are close relatives of prosecutrix had turned hostile. Doctor (PW-8) has stated that prosecutrix have been subjected to sexual intercourse and as per radiological report (Ex.P/15), she is between 15 to 17 years of age. There may be chances of variation of 01 to 02 years from age determined in accordance with radiological report. Differences may occur due to nutritious food and environmental conditions. Police witnesses had deposed regarding procedural aspects of seizure, examination of prosecutrix by the doctor, spot map and regarding investigation. Trial Court has principally relied upon the deposition of Doctor (PW-8) who has stated that prosecutrix is subjected to sexual intercourse as her Pre-MLC is positive. Court also held that prosecutrix is aged about 17 years and a minor. Reliance is placed on DNA report (Ex.P/26). On vaginal slide no male Y-chromosome, STR & Signature Not Verified Signed by: SHABANA ANSARI Signing time: 5/30/2024 1:19:01 PM 4 DNA profile was found but salwar of prosecutrix was also examined which is said to be used for wiping secretions where Y-chromosome, STR & DNA profile was found. On matching DNA from blood sample of accused and genetic material found on salwar of prosecutrix, it is found that male allele found in both sources are same which shows that accused has committed sexual intercourse with prosecutrix.
9. Taking into account aforesaid circumstances, it is clear that there was intercourse between appellant and prosecutrix. Prosecutrix at the time of incident was 17 years of age as per Ossification Test. There are chances that she may be aged about 18 years or more or 16 years. As chances of variation is always there in Ossification Test. Human body develops under nutrition eaten by a person and environment in which he/she is living, therefore, chances of variation cannot be ruled out. Prosecutrix has also turned hostile and not supported the incident of rape. Other close relatives of prosecutrix have also turned hostile and none of them has supported the incident of rape.
10. Appellant is a young man aged about 21 years with no criminal record. He has remained in jail from 04.04.2017 to 21.08.2017 for about 04 months and 17 days and from the date of passing of judgment that is from 05.02.2020, he has remained in jail for a period of four years and seven months.
11. The Protection of Children from Sexual Offences Act (POCSO), 2012 does not bar release of a convict on probation. Case of applicant will be covered within scope of Section 4 of the Probation of Offenders Act, 1958. There is bar under Section 265-A of the Code of Criminal Procedure for doing plea of bargaining in offences which are committed against women or minor child under 14 years of age. Said bar will not come in way of Court to exercise its power under Section 4 of the Probation of Offenders Act, 1958. Power Signature Not Verified Signed by: SHABANA ANSARI Signing time: 5/30/2024 1:19:01 PM 5 under Section 4 of the Probation of Offenders Act can be exercised, if a person is not guilty of committing offence punishable with death or imprisonment for life and Court has to form opinion with regard to the circumstances of the case including nature of offence and character of offender that it is expedient to release him on probation.
12. Considering aforesaid laws and taking into account circumstances of the case i.e. age of prosecutrix, her turning hostile before the Court and all witnesses who are relatives of prosecutrix also turned hostile and also young age of applicant, this Court forms an opinion that appellant be released on probation of good conduct.
13. Appellant be released on furnishing a bond with sum of Rs.50,000/- (Rupees fifty thousand only) with two sureties for maintaining peace, good behaviour and conduct in society before the trial Court. Bond should be furnished for period of two years for maintaining peace and not involving himself in any other criminal offence. Only in case of breach of bond appellant shall be arrested to undergo remaining part of jail sentence. If appellant maintains peace and good behaviour for period of two years then sureties and bond be discharged and appellant be acquitted.
14. With aforesaid direction, criminal appeal stands disposed off.
(VISHAL DHAGAT) JUDGE pn/$A Signature Not Verified Signed by: SHABANA ANSARI Signing time: 5/30/2024 1:19:01 PM