Vikas vs The State Of Madhya Pradesh
2021 Latest Caselaw 8766 MP

1            HIGH COURT OF MADHYA PRADESH :
                     BENCH AT INDORE
                       CRA No.116/2018
                     Vikas Vs. State of MP

Indore: Dated:-14/12/2021:-
         Shri Ajay Bagadia and Shri Abhishek Tugnawat, learned
counsel for the appellant.
         Shri Pushyamitra Bhargav, learned AAG with Ms. Anushree
Kapooria, learned counsel for the State.
         Heard on IA-27397-2021, sixth application filed under Section
389 of Cr.P.C., for suspension of sentence and grant of bail moved on
behalf of the appellant No.1 Vikas and appellant No.2 Sunny alias
Suraj.
2)       The conviction and sentence of the appellants is as under:
Section          Act         Imprisonment     Fine     Imprisonment
                                                       in lieu of Fine
376(D)           IPC       20 years          15,000/- 1 year RI
323A             IPC       5 years           100/-     1 month RI
506 Part II      IPC       6 months          100/-     1 month RI


3)       Learned counsel for the appellants submits that appellants are
held guilty of committing offence under Section 376-D of IPC. As per
prosecution story, the offence had taken place between 2006-2010.
The prosecutrix attained majority in 2010. She narrated the incidence
to her mother on 13/11/2014. FIR was lodged 10 days thereafter on
24/11/2014

. There is no explanation of delay.

4) Shri Bagadia, learned counsel further submits that Section 376- D became part of the statute book w.e.f. 2nd April 2013. As per Article 20(1) of the Constitution, the offence which was not there at the time of commission of crime cannot be a reason to punish the appellants. No charge was framed in relation to previous penal provisions which were prevailing at the time of commission of crime. By placing reliance on (2004) 5 SCC 334 (Dalbir Singh vs. State of U.P.), it is urged that the conviction of appellants on the basis of a subsequent 2 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE CRA No.116/2018 Vikas Vs. State of MP

amended provision namely Section 376-D of IPC is bad-in-law.

5) Per contra, Shri Pushyamitra Bhargav, learned AAG opposed the prayer by contending that two applications for suspension of sentence were dismissed on merits by this Court on 27/02/2018 and 10/01/2020. Recently, Supreme Court also dismissed the prayer for grant of bail on 28/06/2021 in Special Leave to Appeal (Crl.) No(s).4363/2021. Shri Bhargav submits that prosecution submitted charge under Section 376(2)(g), 506 & 323 of IPC although charge was framed by Court below under Section 376-D of IPC. By no stretch of imagination, it can be said that appellants were not aware about the basic ingredients of the offence. By placing reliance on (1977) 1 SCC 643 (State of Maharashtra vs. The Central Provinces Manganese Ore Co. Ltd.), the emphasis is laid on the amending act wherein the word 'substitution' is employed. He submits that no illegality is committed by the Courts. In any case, if there exists any in view of change in period of sentence in pre-amended and post amended provisions, it can be taken care of at the time of final hearing.

6) We have heard the learned counsel for the parties at length and perused the record.

7) This Court on 27/02/2018 passed the following order:-

"Heard on IA No.1205/2018, an application for suspension of sentence under Section 389 (1) of Cr.P.C.

2. Appellants are convicted for the offence punishable under Section 376 (D), 323, 506-II of IPC and sentenced to undergo 20 years RI, 6 months RI and 6 months RI with fine of Rs.15,000/-, Rs.100/- and Rs.100/- with default stipulation respectively by the learned V ASJ, District-Indore in Special Case No.72/2015 vide judgment dated 08/12/2017.

3. Learned counsel for the appellants submits that the incident in this case happened from 2001 to 2006 while the matter was reported to the Police in the year 2014 (on 24/11/2014). Even 3 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE CRA No.116/2018 Vikas Vs. State of MP

after attaining majority in 2010, the prosecutrix did not lodge any report for next four year. She revealed the incident before her mother on 13/11/2014; but the report was filed after 11 days on 24/11/2014. No explanation is given for delay caused on all these occasions. It is further argued that the prosecutrix is well educated girl as she has pursued and completed engineering education, but neither she disclosed her ordeal before any one particularly before her mother nor lodged any report. Medical reports do not support the case of the prosecution as no injuries were found on the prosecutrix on medical examination and doctors were not examined before the trial Court. There are discrepancies regarding date of the incident in the statements of prosecutrix and her mother. All these create serious doubts regarding allegations made by the prosecutrix. It is also urged that final hearing of this appeal is likely to take time and appellants have a good case in appeal, hence jail sentence be suspended during pendency of the appeal.

4. Prayer is opposed by learned Public Prosecutor.

5. This is a case where the prosecutrix was sexually exploited by her first cousins that too when she was only 8 years of age. They exploited her for years together. They beat her, tortured her and threatened her that if she would reveal the incident, she will be defamed and her mother may also die. Due of terror andpressure of the accused persons, the innocent tender age girl kept mum. In the year 2014 when she remained unwell and had pain continuously, her mother insisted and asked her as to what's going wrong with her, it was then only she revealed her sufferings. At that time, her father was on tour. They both waited for him and when he came back, they narrated the whole incident. Only thereafter they decided to report the matter to the Police. The prosecutrix and her mother have categorically narrated the incident before the trial Court.

6. Looking to the nature of the incident, relation of the appellants with the prosecutrix, her age when she faced the gruesome crime, mental and psychological situation of the prosecutrix and her family, her statement and also the statement of her mother before the trial Court, we are not inclined to suspend the jail sentence of the appellants, therefore, the application (IA No.1205/2018) filed by them is hereby dismissed."

8) Another application was rejected on 10/01/2020 by holding 4 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE CRA No.116/2018 Vikas Vs. State of MP

thus:-

"Parties through counsel.

I.A.No. 10265/2019 is an application for grant of permission to execute some sale deed/power of attorney.

There is a procedure for execution of the document at the residence or at any other place other than the registration office and in case the appellant submits an application in prescribed format and fulfills the condition for registration of the document inside the jail, the jail authority will not object to the same.

I.A.No. 10265/2019 is accordingly disposed of.

I.A.No. 9230/2019 is a repeat application for suspension of sentence.

This Court by a detail and exhaustive order dated 27.2.2018 after scanning the entire evidence has rejected the application for suspension of sentence.

There is no change in the circumstances. I.A.No.9230/2019 is accordingly rejected."

9) Indisputably, the Apex Court dismissed the aforesaid SLP on 28/06/2021. Thus, no case is made out for grant of suspension of sentence on merits. So far as legal and rival submissions regarding applicability of Section 376-D of IPC are concerned, in our opinion, it can be gone into at the time of final hearing of this matter. At this stage, no case is made out for suspension of sentence.

The application is dismissed.

     (SUJOY PAUL)                                      (PRANAY VERMA)
       JUDGE                                               JUDGE

soumya

    Digitally signed by
    SOUMYA RANJAN
    DALAI
    Date: 2021.12.15
    10:16:17 +05'30'