Madhya Pradesh High Court
Ankit vs The State Of Madhya Pradesh on 2 July, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
-1-
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Criminal Appeal No.1385/2015
Ankit & Two Others v/s The State of Madhya Pradesh & Others
Indore, dated 02.07.2021
Heard through video conferencing.
Shri Aviral Vikas Khare, learned counsel for appellant
No.1.
Ms. Mamta Shandilya, learned Government Advocate for
the respondent / State.
Heard on I.A. No.15212/2021, a repeat (fourth) application under Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and granted of bail filed on behalf of appellant No.1 - Ankit Rathore S/o Sunil Rathore.
The appellant No.1 has been convicted vide judgment of conviction dated 16.09.2015 passed by the Sessions Judge, Mandleshwar, West Nimad in Sessions Trial No.317/2014 for the offences punishable under Sections 376-A r/w section 34, Sections 376-D, 449/34 & 302 of the Indian Penal Code and sentenced to undergo life imprisonment along with fine of Rs.5,000/-, 20 years' rigorous imprisonment along with fine of Rs.2,000/- and 10 years' rigorous imprisonment along with fine of Rs.1,000/- respectively. With default clause to further undergo 6 months' 3 months' and 2 months rigorous imprisonment respectively.
Learned counsel for the appellant at the outset submits that although this Court passed a detailed order on 11.11.2016 -2- and rejected the previous application for suspension of jail sentence on merits, in the previous order, Exhibit-P13 was not properly considered. There is difference between multiple dying declaration. The appellant No.1 is only surviving male member of the family remaining have died. His parole application was not considered by the Administration. Hence, remaining jail sentence of the appellant may be suspended.
The prayer is opposed by the learned Government Advocate for the respondent / State.
This Court by order dated 11.11.2016 has dismissed the previous application of the appellant on merits. Relevant portions of the said order reads as under:-
Heard on I.A. No. 6708 of 2016, an application for suspension of jail sentence of appellant No.1--Ankit Rathore. Also heard on I.A. No.6707/2016, 2nd repeat application for suspension of jail sentence of appellant No.3 --Vishal Choudhari.
First application of appellant No.3-Vishal Choudhari was dismissed as withdrawn by order dated 18.1.2016.
Learned Counsel for the appellants has drawn our attention to the statements of (PW/2) Jitendra Agarwal, (PW/3) Rajendra Yadav and (PW/5) Mahesh and submitted that all the eyewitnesses have turned hostile and they did not support the case of the prosecution. He also placed reliance on (Ex. P/13) medical report and submitted that as per first dying declaration of the deceased, no allegation has been made against the present appellant and there are material contradictions and omissions in second dying declaration (Ex. P/44) and submitted that the said dying declaration was not certified by any Doctor that at the time of recording the second dying declaration whether she was in a fit state of mind or not. He has also placed reliance on a decision of the Apex Court in the case of State of Gujarat v. Jayrajbhai Punjabhai Varu, AIR 2016 SC 3218 and prays for grant of suspension of jail sentence.
-3-Learned Panel Lawyer opposed the prayer and submitted that the second dying declaration has been recorded by the Executive Magistrate and (PW/9) Dr. Bharat Bajpai, has been duly proved the same that at the time of recording the said dying declaration she was in fit state of mind. He also submitted that (PW/9) in his statement has proved the injuries sustained to the prosecutrix on her internal part and as per DNA test Human sperm were found and the presence of all three accused persons were duly proved as burn injuries were found on them and prays for rejection of the application.
On due consideration of the aforesaid statements and (Ex. P/44), we are of the view that the present appellants are deeply involved in the alleged offence and as per dying declaration they caused burn injuries to deceased-- Nidhi. No case for grant of suspension of jail sentence, as prayed is made out.
Accordingly, I.A. No.6708/2016 and I.A. No.6707/2016 are rejected."
A plain reading of this order shows that apart from other evidence, this Court rejected the previous application on yet another ground that the case of the prosecution is supported by the DNA test report.
Considering the very serious and heinous nature of crime, no case is made out for suspension of jail sentence. No case of out of turn hearing is made out at this stage.
Accordingly, I.A. No.15212/2021 is rejected.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2021.07.02 17:24:35 +05'30'