Inder Alias Indal Banjara vs The State Of Madhya Pradesh
2021 Latest Caselaw 5392 MP

THE HIGH COURT OF MADHYA PRADESH Cr.A.1573/2021 Inder @ Indal Banjara v. State of M.P and Anr.

Gwalior, Dated : 14.9.2021

Shri Rishikesh Bohare, Counsel for the appellant.

Shri C.P. Singh, Counsel for the State.

Heard on I.A. No. 27219/2021 repeat application for

suspension of sentence and grant of bail. First application was

dismissed as withdrawn on 31.7.2021.

It is submitted by the Counsel for the appellant that the school

record of the prosecutrix is not reliable in which the date of birth of

prosecutrix is mentioned as 11.7.2001 Ex. P-16 as there is no

supporting document to prove the said entry. It is further submitted

that the prosecutrix has given an affidavit before this Court which

has been filed along with I.A. No. 27219/2021 which reads as

under:-

"1, Geetabai Banjara, D/o Shri Khema Banjara, Aged about 24 years, Occupation- Houwewife-R/o Village- Patan, P.S. Raghogarh District Guna (M.P.), Present R/o Village- Khajra, P.S. Raghogarh District Guna (MP), do hereby solemnly affirm on oath as under: (1) That, I am duly married wife of appellant as per social rituals of our community, I got drafted an application for suspension of sentence on behalf of appellant/accused.

(2) That, the contents of application para 1 to 6 are true and correct to the best of my knowledge and belief."

It is submitted that after leaving her first husband, the

THE HIGH COURT OF MADHYA PRADESH Cr.A.1573/2021 Inder @ Indal Banjara v. State of M.P and Anr.

prosecutrix has married to the appellant as per social rights and

rituals.

However, in the affidavit the date of marriage has not been

disclosed. Further, thumb impressionism of the deponent has been

affixed. There is no remark by the Oath Commissioner that the

contents of the affidavit which are in English language, were ever

read over to the deponent.

During course of arguments, it was submitted by Shri Bohare

that the prosecutrix got married to the appellant sometime in the year

2020.

The appellant has been convicted by judgment dated 2.2.2021.

If the marriage of the prosecutrix had already been taken place with

the appellant during pendency of the trial, then why no such affidavit

was filed before the trial Court seeking recall of the prosecutrix.

Further, subsequent marriage of the prosecutrix with the appellant is

of no consequences so far as original offence is concerned. Further

the prosecutrix was already married and there is nothing on record

that she had obtained divorce as per Hindu Law. There is no whisper

in the affidavit that any divorce as per the customary law was

obtained. Thus, it is clear that even otherwise, during subsistence of

first marriage, second marriage of the prosecutrix with the appellant

is not permissible.

THE HIGH COURT OF MADHYA PRADESH Cr.A.1573/2021 Inder @ Indal Banjara v. State of M.P and Anr.

In the circumstances, the affidavit of the prosecutrix filed by

the appellant along with I.A. No. 27219/2021 is hereby rejected.

In view of presence of DNA in the vaginal slide of the

prosecutrix coupled with the fact that date of birth of prosecutrix is

11.7.2001 and she was minor on the date of incident, no case is made

out for suspension of jail sentence. Accordingly, I.A. No.

27219/2021 is hereby rejected.

(G.S. Ahluwalia) Judge ar

ABDUR Digitally signed by ABDUR RAHMAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya

RAHMAN Pradesh, 2.5.4.20=d604b5a66b413c436e6af99c6fe547304e1bc26 d2b510cc133f1b56faa63e77b, cn=ABDUR RAHMAN Date: 2021.09.15 17:47:07 -07'00'