Madhya Pradesh High Court
Rajkumar Thakur vs The State Of M.P on 24 June, 2021
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
1 CRA-292-2021
The High Court Of Madhya Pradesh
CRA-292-2021
(RAJKUMAR THAKUR Vs THE STATE OF M.P)
6
Jabalpur, Dated : 24-06-2021
Heard through Video Conferencing.
Shri V.S. Choudhary, learned counsel for the appellant.
Shri Lokesh Jain, learned P.L. for the respondent-State.
Record of the Court below has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Also Heard on I.A.No.709/2021, which is first application for suspension of execution of jail sentence and grant of bail to the appellant/accused.
Appellant stands convicted for the offences punishable under Sections 342, 366 and 376 (2)(n) of IPC and has been sentenced to undergo RI for 6 months, 05 years and 10 years with fine of Rs.500/-, Rs.1500/- and Rs.5,000/-respectively. Default stipulations have also been imposed by the trial Court.
As per prosecution case, on 01.01.2019, prosecutrix lodged the FIR against the appellant and two other co-accused persons mentioning therein that on 30.12.2018, in the evening at about 06:00 O'clock, when she was washing clothes, the appellant and co-accused-Anil Lodhi came to her, caught hold her hand and took her at river where a motorcycle was standing. The accused persons took her in that motorcycle being driven by co-accused Anil. They took her at the farm of one Pandit Ji where appellant committed sexual intercourse with her forcefully thereafter co-accused Kailash joined co- accused Anil and both took her into the room and committed sexual intercourse with her. The prosecutrix belongs to SC/ST community and claimed herself as minor, therefore, the police registered the case under SC/ST Act as well as POCSO Act in addition to the offences of IPC. The 2 CRA-292-2021 learned trial Court found the appellant guilty for the offence punishable under Sections 342, 366 and 376(2)(n) of the IPC. The appellant himself belongs to SC/ST community, therefore, the trial Court found no offence under SC/ST Act is made out against him. Further, the trial Court has not found proved the fact that the prosecutrix was minor at the time of incident, hence, no conviction under POSCO Act imposed by the trial Court. Co-accused Anil and Kailash Lodhi were acquitted by the trial Court.
Learned counsel for the appellant submits that the judgment passed by the trial Court is bad in law and deserves to be set aside. He submits that the trial Court has failed to consider the fact that there is material discrepancies in the statements of prosecution witnesses. On the same set of allegation, the trial Court has already acquitted the other co-accused persons. The version of prosecutrix made before the trial Court is not reliable. She has also turned hostile. The medical report of prosecution does not suggest any forcefully sexual intercourse with her. In the case, DNA test was also conducted wherein it is revealed that the DNA profile found from the source of prosecutrix does not belong to accused persons which clearly shows that the prosecutrix has falsely implicated the appellant in false rape case even then the trial Court did not consider the DNA report and wrongly convicted the appellant. The appellant is in jail since 02.01.2019. The appeal is of year 2021 and it will take sufficient time in its conclusion. There is every possibility to get success in the appeal. There is no likelihood of his absconding. Under the circumstances, if the sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of his jail sentence and grant of bail.
Learned counsel for the respondent/State opposes the same submitting that the impugned judgment of conviction and order of sentence is based on proper appreciation of oral as well as documentary evidence and the appellant has committed grave offence and the aforesaid offence is also serious in nature. It is further submitted that DNA report is not a conclusive piece of 3 CRA-292-2021 evidence. Therefore, sentence of the appellant should not be suspended.
Heard and perused the record.
O n perusal, however, the trial was conducted in relation to present appellant and two other co-accused persons, namely, Anil and Kailash but the learned trial Court has acquitted the co-accused persons giving them benefit of doubt. As far as present appellant is concerned, the trial Court has found that the prosecutrix has stated sufficient against him and thus, he has been convicted by the trial Court. The learned counsel for the appellant raised the argument regarding non-admissibility of DNA report by the trial Court which is favour in the accused/appellant. The learned trial Court has not considered the DNA report holding that the same is not conclusive piece of evidence and weightage cannot be given to it over the oral evidence adduced by the prosecutrix.
In the case of Mukesh v. State (NCT of Delhi) reported in (2017) 6 SCC 1, the Hon'ble Supreme Court held that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.
Here in the case, there is no finding of the trial Court about the sampling of DNA profile. The DNA report indicates that the DNA profile found from the source of prosecutrix does not match with the profile of accused persons rather it belongs to other person. Besides the above, the appellant is in jail since 02.01.2019 has suffered about two years of jail sentence. He is having no previous criminal record. There is no possibility of his absconding. The appeal is of the year 2021.
Having considered the arguments advanced by learned counsel for the parties, but without commenting anything on the merits of the case, the said I.A. No.709/2021 is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the 4 CRA-292-2021 appellant/accused-Rajkumar Thakur shall remain suspended during the pendency of this appeal and he be released on bail on his furnishing a personal bond for a sum of Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the trial court on 13.09.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.
I n view of the outbreak of 'Corona Virus disease (COVID-19)' the appellant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020 , it would be appropriate to issue the following direction to the jail authority :-
1. The Jail Authority shall ensure the medical examination of the appellant by the jail doctor before his release.
2. The appellant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.
3 . If it is found that the appellant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.
List this matter for final hearing in due course.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE sp Digitally signed by SAVITRI PATEL Date: 2021.06.26 16:59:37 +05'30'