Vaman Dhote vs The State Of Madhya Pradesh
2021 Latest Caselaw 833 MP

                                                             1                            CRA-2414-2020
                                The High Court Of Madhya Pradesh
                                           CRA-2414-2020
                                          (VAMAN DHOTE Vs THE STATE OF MADHYA PRADESH)

                      5
                      Jabalpur, Dated : 18-03-2021
                               Shri Pramod Kumar Thakre, learned counsel for the appellant.
                               Shri Ravindra Singh Rajput, learned Panel Lawyer for the respondent-

State.

Shri Sanjay Sharma, learned counsel for the objector. Record of the Court below is available.

This appeal is admitted for final hearing.

Heard on I.A.No.13720/20, an application for suspension of execution of jail sentence and grant of bail to the appellant, The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 by the appellant/accused against judgment dated 12.02.2020 passed by learned II Additional Session Judge, Multai, District-Betul (MP) in S.T.No.349/2017, by which the appellant has been convicted for offence under Sections 376(2)(N) of IPC and has been sentenced to undergo R.I. for 10 years with fine of Rs.10,000/- with default stipulation.

A s per prosecution case, on 4.10.2017, prosecutrix, aged 24 years, submitted a written report before Incharge of Police Station Bordehi. It is alleged by her that she is the resident of Village Babarboh and accused/appellant is resident of Gopaltalai. Maternal uncle of accused/appellant was residing at Village Babarboh. Accused/appellant used to come in the house of his maternal uncle. so, she knows the accused/appellant since three years back i.e. 14.2.2017. On 14.2.2017, accused/appellant called the prosecutrix at the house of his maternal uncle. Prosecutrix reached there and thereafter accused/appellant proposed to marry her and thereafter, accused/appellant committed intercourse with her. Thereafter, accused/appellant came at the house of his maternal uncle.

Signature Not Accused/ appellant called prosecutrix and committed intercourse with her on SAN Verified

Digitally signed by LALIT SINGH RANA Date: 2021.03.23 16:55:43 IST 2 CRA-2414-2020 the pretext of marriage. Thereafter, prosecutrix became pregnant. Accused/appellant came at the house of his maternal uncle in the month of August, but accused/appellant refused to marry with her. At that time, prosecutrix was carrying 7 months' pregnancy and thereafter she blessed a child.

Learned counsel for the appellant/accused submits that learned trial

Court committed grave error to convict and sentence to appellant/accused. The trial Court had ignored this material fact that the prosecutrix herself used to call the appellant/accused and wanted to marry him. There is no sign of forcible relationship made by the appellant/accused. Prosecutrix (PW-1) herself admitted this fact that appellant/accused was doing job at Gujrat. She inquired that as to when appellant/accused was coming in the house of his maternal uncle. Prosecutrix, aged 24 years, is a educated lady. She also admitted that on the basis of promise, physical relationship cannot be made. She voluntarily came to the house of maternal uncle of appellant/accused. When appellant/accused committed intercourse with her at that time maternal aunt of appellant/accused was present in the house. So it appears that prosecutrix voluntarily made physical relationship with appellant/accused. At the time of intercourse, prosecutrix did not object. Prosecutrix herself admitted this fact that she known the sister of one Sunil Sakre. Marriage of sister of Sunil Sakre was solemnized with one Patankar in her village. One Lata caused some dispute due to the relation of one Sunil Sakre and prosecutrix. Therefore it may be a ground to refuse the marry by the appellant/accused to the prosecutrix. There is material contradictions and omissions in the evidence of witnesses. So it is not proved that appellant/accused committed intercourse with the prosecutrix on the false pretext of marriage. Appellant/accused is in custody since. 12.02.2020. He remained in jail since 24.10.2017 to 06.12.2017 during trial. This appeal is of the year 2020. There is fair chance to succeed in the appeal. There is no likelihood of his absconding and tampering with the evidence. Under the Signature SAN Not Verified

Digitally signed by LALIT SINGH RANA Date: 2021.03.23 16:55:43 IST 3 CRA-2414-2020 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 execution of jail sentence and grant of bail of present accused/ appellant. In support of his contention, he relied the judgment of Apex Court in the case of Raja and others Vs. State of Karnataka reported in (2016) 10 SCC 506 and Sonu @ Subhash Kumar Vs. State of Uttar Pradesh @ another in Criminal Appeal No. 233/2021.

Learned Panel Lawyer for the State opposes the application submitting that impugned judgment of conviction and order of sentence are based of proper appreciation of oral as well as documentary evidence. Therefore, appellant/accused has committed grave offence. With the aforesaid, he prays

for its rejection.

Learned counsel for the objector also opposes the said application submitting that there is presumption under Section 114(A) of Evidence Act. Prosecutrix deposed that appellant/accused committed intercourse with her against her will, so it will be presumed that appellant/accused committed intercourse with her without her consent.

Considering the contention of both the parties and looking to the law laid down in the case of Raja and others (Supra) in para 34, relied upon by the appellant which reads as under:-

"............ It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Section 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at

Signature SAN Not the spot is probable but it can never be presumed that her Verified

Digitally signed by LALIT SINGH RANA Date: 2021.03.23 16:55:43 IST 4 CRA-2414-2020 statement should always without exception, be taken as gospel truth. The essesnce of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."

So it is crystal clear that evidence of prosecutrix is still be subject to judicial scrutiny. It is admitted fact that prosecutrix is an educated lady at the time of incident, she was aged about 23 years. Prosecutrix is resident of Village-Babarboh, Police Station-Bordehi. Appellant/accused is resident of Village-Gopaltalai, Police Station-Multai. Maternal uncle of appellant/accused was residing at Village-Bordehi. Appellant/accused used to come to the house of maternal uncle at Village-Babarboh. Prosecutrix herself voluntarily came to the appellant/accused in the house of his maternal uncle. When appellant/accused made physical relationship with prosecutrix at the house of his maternal uncle, at that time his maternal aunt was present in that house. It is also clear that prosecutrix did not object at the time of intercourse. Appellant/accused was doing work at Gujrat. Prosecutrix herself inquired in regard of appellant/accused. As to when he was coming to meet his maternal uncle at Babarboh. This appeal is of the year 2020 and final hearing of this appeal will take time, but without expressing any opinion on the merits of the case, I am of the considered opinion that it would be appropriate to suspend the custodial sentence awarded to the appellant and grant bail to him.

Consequently, I.A.No.13720/20 is allowed subject to deposit of fine amount, if not already deposited. The custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal.

Appellant-Vaman Dhote be released from custody subject to his

Signature SAN Not furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Verified

Digitally signed by LALIT SINGH RANA Date: 2021.03.23 16:55:43 IST 5 CRA-2414-2020 Thousand Only), with one surety in the like amount, to the satisfaction of the trial Court. The appellant shall appear and mark his presence before the trial Court on 16.06.2021 and shall continue to do so on all such future dates, as may be given by the trial Court in this behalf, during pendency of the matter.

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 the matter for final hearing in due course. C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

L.R.

Signature
 SAN      Not
Verified

Digitally signed by
LALIT SINGH RANA
Date: 2021.03.23
16:55:43 IST