Ateek Khaa vs The State Of Madhya Pradesh
2022 Latest Caselaw 6069 MP

                                        1
                IN THE HIGH COURT OF MADHYA PRADESH
                             AT GWALIOR
                                CRA No. 6438 of 2021
                  (ATEEK KHAA AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 25-04-2022
         Shri Sushil Goswami, learned counsel for the appellants.

         Shri Rajesh Shukla, learned Deputy Advocate General for the respondent-

State.

Heard o n I.A. No.1572/2022, first application preferred under Section 389(1) of Cr.P.C. for suspension of sentence and granted of bail on behalf of appellant No.1-Ateek Khan.

The appellant No.1-Ateek alongwith co-accused Pawan Raghuvanshi stood convicted under Section 366 of IPC and sentenced to undergo 05 years RI with fine of Rs.2500/- and under Section 376-D of IPC and sentenced to undergo 20 years RI with fine of Rs.5000/- and under Section 450 of IPC and sentenced to undergo 05 years RI with fine of Rs.2500/- with default stipulations respectively vide judgment of conviction and order of sentence dated 30/09/2021 passed by the First Additional Sessions Judge, Ashoknagar in Sessions Case no.108/2018.

Appellant has suffered jail incarceration for more than 04 years as he is in jail since 25/05/2018.

As per prosecution story, complainant Rajendra Singh @ Bablu filed a complaint on 23/05/2018 alleging that that prosecutrix; widow of his younger brother lt. Shri Rajkumar Raghuvanshi who lived with her parents eloped from the house in the mid- night of 22/05/2018- 23/05/2018 leaving her 10 years' old son alone, as her parents had gone on journey on 23/05/2018, but after search prosecutrix could not be recovered. It was suspected that prosecutrix had been abducted by the co-accused Pawan Raghuvanshi r/o village Amoda, therefore, Istigasa was lodged vide No.8/18. The prosecutrix was recovered on 25/05/2018 and her statement under Section 161 of Cr.P.C. was recorded. In her statement, prosecutrix alleged that on 22/05/2018 at about 12 in the night, appellant alongwith co-accused Pawan Raghuvanshi had broken up the lock of the shutter, entered the house and subjected her to repeated intercourse forcibly. She was administered sleeping tablets also. Thereafter, both of them made her to sit on the motorcycle

and all three of them went to Ajmer. At Ajmer, she was forced to perform some ritual of marriage with Ateek Khan. On such statement, FIR was registered at Crime No.112/2018 at Police Station Sadora for the offence punishable under Sections 450, 376(2)(छ) of IPC. After investigation, final report was submitted

and the case was committed to the Sessions Court.

Learned counsel for the appellant submits that the entire story by the prosecution is false and concocted. Appellant is innocent and has been falsely implicated in the case. He made following submissions:-

(i) that PW-18 Jagmohan Investigating Officer in paragraph 26 of his statement has stated that no lock of the shutter was broken;

(ii) that it is humanly impossible to drive at a distance of 600 kms. on a motorcycle with three persons riding on it;

(iii) that Dr. Kirti Goyal (PW-17) in her ocular statement has stated that on 25/05/2021, prosecutrix was brought to her while she was medical officer at district hospital for medical examination. Prosecutrix has alleged that she was sexually abused on 21/05/2022. She had come for medical examination after taking bath. In the medical examination, it was found that hymen was already ruptured and there was no external or internal injury on her private part; therefore, she did not give any definite opinion regarding sexual intercourse. She expressed that unless there is chemical analysis report, it is difficult to give any opinion;

(iv) that her sister-in-law Laxmi Bai (PW-4) has stated that besides the prosecutrix, her son and other family members were also sleeping inside the house. DNA sample was taken after 01 year 07 months on 07/12/2019 and thereafter, report was submitted.

Under such circumstances, it is submitted that conviction based upon the allegations made in the FIR is on surmises and conjecture. Relevant piece of evidence has not been considered. Appellant has already suffered jail incarceration for 04 years and 06 months. Appellant has no criminal antecedents. The appeal is of the year 2021 and there is no likelihood of early hearing of the appeal in the near future. Therefore, in the obtaining facts and circumstances, jail sentence of appellant No.1-Ateek Khan may be suspended on such terms and conditions this Court deems fit and proper.

Per contra, learned counsel for the respondent-State opposed the application supporting the impugned judgment inter alia contending that prosecutrix withstood in her cross-examination. Prosecution witnesses have given consistent ocular evidence supporting the story of the prosecution. Even if, DNA sample was taken on 07/12/2019, this by itself does not falsify the report. The DNA report has been well discussed in paragraph 20 of the judgment of the Court below. However, learned counsel for the respondent-State has maintained blissful silence about the fact of not having broken the lock of the shutter or any

incriminating material in support of the story of the prosecution regarding entering the house and kidnapping etc. This Court though refrains from commenting upon the submissions advanced, touching merits of the case, but regard being had to the fact that appellant has already suffered jail incarceration since 25/05/2018, therefore, in the obtaining facts and circumstances, appellant is held entitled for suspension of sentence. Accordingly, I.A. No.1572/2022 is hereby allowed and it is directed that the jail sentence of the appellant No.1-Ateek Khan shall remain suspended and he be released on bail on his furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees Two Lacs Only) with one solvent surety in the like amount to the satisfaction of the trial Court concerned for his appearance before the Principal Registrar of this Court on 30.06.2022 a n d thereafter on other subsequent dates as may be fixed in this behalf with following further conditions:-

(i) that appellant No.1 will abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from time to time in the matter of maintaining social distancing, physical distancing, hygiene, etc, to avoid proliferation of Novel Corona virus (COVID-19);

(ii) the concerned jail authorities are directed that before releasing appellant No.1, the medical examination of the appellant No.1 be conducted through the jail doctor and if it is prima-facie found that they are having any symptom of Covid- 19, then the consequential follow up action or any further test required be undertaken immediately.

Office is directed to send copy of this order to the concerned Court and concerned Police Station for information and necessary action.

I.A. No.1572/2022 stand closed.

      (ROHIT ARYA)                                      (MILIND RAMESH PHADKE)
         JUDGE                                                   JUDGE

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VARSHA
CHATURVEDI
2022.04.26
10:30:29 +05'30'