Dhansingh vs The State Of Madhya Pradesh
2022 Latest Caselaw 5738 MP

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The High Court of Madhya Pradesh : Bench At Indore
DIVISION BENCH:      HON'BLE MR. JUSTICE VIVEK RUSIA &
                     HON'BLE MR. JUSTICE AMAR NATH (KESHARWANI)

                   Criminal Appeal No.568 of 2017
            Anil & Another v/s The State of Madhya Pradesh

                   Criminal Appeal No.603 of 2017
              Dhan Singh v/s The State of Madhya Pradesh
Indore, dated 20.04.2022
           Shri Vivek Singh, learned counsel for the appellant in
Cr.A. No.568 of 2017.
           Shri Jeevan Singh Gurjar, learned counsel for the appellant
in Cr.A. No.603 of 2017.
           Shri Kamal Kumar Tiwari, learned Government Advocate
for the respondent / State.

This common order shall govern disposal of I.A. Nos.21893/2021 & 4547/2022.

Cr.A. No.568 of 2017 Heard on I.A. No.21893/2021, which is first application under Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of appellant No.1 - Anil S/o Savaisingh Barela & appellant No.2 - Dhulsingh S/o Chiman Singh Barela.

The present appellants suffered conviction and sentence as under:-

           CONVICTION                                 SENTENCE
 Section     Act     Imprisonment         Fine if deposited   Imprisonment in
                                              details           lieu of fine



   450      IPC     10 years' R.I.         Rs.1,000/-   1 month's R.I.
   366      IPC     10 years' R.I.         Rs.1,000/    1 month's R.I.
 376(D)     IPC     R.I. for Life          Rs.2,000/-   6 months' R.I.
376(2)(N)   IPC     10 years' R.I.         Rs.1,000/    1 month's R.I.


Cr.A. No.603 of 2017

Heard on I.A. No.4547/2022, which is second application under Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail filed on behalf of appellant - Dhanshingh S/o Nandram Barela.

This appellant has been convicted for the offence punishable under Section 376(D) of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.20,000/-. With default clause to further undergo 3 months' rigorous imprisonment.

As per prosecution story, on 12.07.2015, when prosecutrix (P.W-2) was sleeping in the courtyard of the house, at about 3:00 am, appellants - Anil and Dhulsingh came there and took hear near a well. Thereafter, one another accused - Dharmendra joined them and committed gang rape upon her repeatedly. Thereafter, she came back and narrated the story to her cousin brother near about 8:00 am. She was medically examined and F.I.R. was registered under Section 376, 376(D), 376(2)(N) of the Indian Penal Code & Section 3/4 of the Protection of Children from Sexual Offences Act. After completing the investigation, charge-sheet was filed against four accused persons, appellants and Dharmendra.

Dharmendra has been acquitted vide judgment dated 07.03.2017 and these three accused persons have been convicted.

Shri Vivek Singh, learned counsel for the appellants in Cr.A. No.568 of 2017 submits that conduct of the prosecutrix is unnatural. After the alleged rape, she came back to the house and did not inform to anyone in the family about the incident. Next day in the morning, she informed her cousin Santosh (P.W-3) who turned hostile. In cross-examination, the prosecutrix admits that accused persons were not known to her as the offence was committed in the night, therefore, she could not see their faces. In para - 15, she admitted that there was a dispute between Anil and Dhulsingh.

Learned counsel for the appellant - Dhansingh submits that in para - 17, she admits that before Test Identification Parade, she has already been told the name of Dhansingh by her cousin. Dhansingh was on bail during the trial and there is no allegation of rape against him.

Learned Government Advocate for the respondent / State opposes the application by submitting that there is no reason to disbelieve the statement of prosecutrix which is corroborated by medical evidence. Hymen was ruptured. She has identified the accused in TIP. Minor omissions and contradictions in the statements are liable to ignored.

In view of the above keeping in view the nature of offence, at this stage, we are not inclined to suspend the remaining jail

sentence of these appellants.

Accordingly, I.A. Nos.21893/2021 & 4547/2022 stand rejected.

     (VIVEK RUSIA)                       (AMAR NATH (KESHARWANI))
       JUDGE                                     JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.04.22 17:36:37 +05'30'