Madhya Pradesh High Court
Ashish Patel vs The State Of Madhya Pradesh on 27 April, 2021
Author: Chief Justice
1 CRA-2021-2020
The High Court Of Madhya Pradesh
CRA-2021-2020
(ASHISH PATEL Vs THE STATE OF MADHYA PRADESH)
8
Jabalpur, Dated : 27-04-2021
Heard through Video Conferencing.
Shri Shreyash Pandit, Advocate for the appellant.
Shri A. Rajeshwar Rao, Government Advocate for the
respondent/State.
Heard on the question of admission.
Appeal is arguable hence admitted for hearing.
Also heard on I.A. No.12337/2020 which is the first application for
suspension of sentence and grant of bail on behalf of the appellant.
The appellant has been convicted under Sections 450, 376(2(i)(j) and
506(b) of I.P.C. and sentenced to undergo R.I. for 7 years with fine of
Rs.20,000/-, R.I. for life with fine of Rs.20,000/- and R.I. for 2 years with
fine of Rs.10,000/-, respectively with default stipulation vide judgment dated
18.2.2020 passed by the Special Judge SC/ST (Prevention of Atrocities) Act,
1989, Jabalpur in SC ATR Case No.24/2014.
Shri Shreyash Pandit, learned counsel appearing for the appellant
submits that the prosecutrix was actually major at the time of incident, which
is evident from the careful examination of the evidence of Dr. M.M. Agrawal
(PW-9), who has conducted the ossification test of the proslecutrix and has
proved in his report marked as Ex.P-20. Learned counsel for the petitioner
has referred to the statement of doctor (PW-9) wherein he has stated that the
lower part of the radius and ulna bone was not fully developed and therefore
the age of the prosecutrix could be less than 15 years. But at the same time he
opined that since the bones of the iliac crest were not fully joint and therefore
her age could be less than 19 years. Dr. M.M. Agrawal (PW-9) also said that
since bones of the elbow were not fully joint and therefore her age has to be
more than 15 years. On that basis the doctor has opined that the age of the
2 CRA-2021-2020
prosecutrix could be between 15 to 17 years, but in the cross-examination he
has clearly stated that considering the environmental, genetic and dietary
effect, her age could be ranged of plus minus two years. Learned counsel
relying on that specific part of the statement of Dr. M.M. Agrawal submitted
that in cross-examination he has categorically said that the age of the
prosecutrix can be between 17 - 19 years.
Learned counsel for the appellant submitted that the trial Court itself
has discarded the evidence of the school documents namely progress report
of the school Ex.P-6 and Dakhila Kharij Register (Ex.P-12) and recorded a
finding that Head Master of the school has not been produced to prove these
documents as well as the father of the prosecutrix himself admitted that he
gave the date of birth of the prosecutrix on the basis of memory that she was
borne on 5.5.2001 in Elgin Hospital, Jabalpur. Learned counsel for appellant
submitted that Dr. R. K. Khare (DW-2) Elgin Hospital has produced the
report that as per the Register maintained in their hospital, from Serial No.36
to 51 six children were borne on 5.5.2001 and none of them was the daughter
of Tikaram Jharia (PW-4).
It is further submitted that the prosecution has registered a false case
against the appellant that the prosecutrix was carrying pregnancy of two
months when the written report was submitted before the SHO of concerned
police station on 10.1.2014 (Ex.P-1). Learned counsel also submitted that
number of love letters written by the prosecutrix addressed to the
accused/appellant has been produced in evidence, in particular, attention has
been drawn towards Ex.D-4 letter written by the prosecutrix to the petitioner
that she has given false evidence under the pressure of her father. When this
document and other letters were subjected to examination by handwriting
expert Anil Kumar Das (DW-1), he in his report Ex.D-11(C) proved that the
handwriting in the said letters was of the prosecutrix. The accused/appellant
was on bail during trial, even otherwise he remained in jail for about 1 year
and 9 months.
3 CRA-2021-2020
Learned Government has opposed the application.
Having considered the contentions of the learned counsel for parties,
considering the material available on record and the facts and circumstances
of the case and that the hearing of the appeal is likely to take time, we are
persuaded to allow the application I.A. No.12337/2020 and suspend the
sentence awarded to the appellant.
It is directed that the remaining part of the jail sentence imposed upon
the appellant - Ashish Patel, shall remain suspended and he shall be enlarged
on bail upon his furnishing a personal bond in the sum of Rs.50,000/- (Fifty
Thousand Only) with two sureties of Rs.25,000/- each to the satisfaction of
the learned trial Court.
The jail authorities shall have the appellant checked by the jail doctor
to ensure that she is not suffering from the coronavirus and if she is, she shall
be sent to the nearest hospital designated by the State for treatment. If not,
she shall be transported to her place of residence by the jail authorities.
Certified copy as per rules.
(MOHAMMAD RAFIQ) (SANJAY DWIVEDI)
CHIEF JUSTICE JUDGE
Anchal
Digitally signed by
ANCHAL KHARE
Date: 2021.04.27
16:27:23 +05'30'
