Manju @ Janki Dhakad vs The State Of Madhya Pradesh
2022 Latest Caselaw 2899 MP

                              1
               HIGH COURT OF MADHYA PRADESH
      Criminal Appeal No.212/2020 (Manju alias Janki Dhakad Vs. State of M.P.)



Gwalior, Dated : 2.3.2022

      Shri Prabal Solanki, learned counsel for the appellant.

      Shri Rajesh Shukla, learned Deputy Advocate General for the

respondent/State.

Heard on I.A.No.22964/2020, second application preferred

under Section 389 (1) of Cr.P.C. for suspension of sentence and grant

of bail on behalf of appellant-Manju @ Janki Dhakad.

Appellant stands convicted vide judgment of conviction and

order of sentence dated 25.11.2019 passed by Second Additional

Sessions Judge, Shivpuri, District Shivpuri (M.P.) in Special Sessions

Case No.91/2018, for the offences under Section 376(3), 363 and 366

IPC and sentenced to undergo 21 years rigorous imprisonment with

fine of Rs.1000/-, 2 years rigorous imprisonment with fine of Rs.1000/-

and 2 years rigorous imprisonment with fine of Rs.1000/- respectively,

with default stipulation.

Appellant has been in jail incarceration since 29.7.2018. As on

date, as is stated at the bar that the appellant has undergone 3 ½ years

of jail sentence.

As per the prosecution story, while one Subran, Rekha and the

prosecutrix were sleeping inside the room and Sua Bai (PW.2),

mother of the prosecutrix and Girraj (PW.3) were sleeping outside. At

late night Rekha told her mother Sua Bai (PW.2) that the prosecutrix

HIGH COURT OF MADHYA PRADESH Criminal Appeal No.212/2020 (Manju alias Janki Dhakad Vs. State of M.P.)

was missing. She had apprehension that the prosecutrix has been

manipulated and fled away with Manju Dhakad, therefore, on

suspicion she lodged an FIR. The prosecutrix was recovered after one

day. In her statement under section 161 of Cr.P.C. she stated that the

appellant had phoned him on mobile to come out. No sooner did she

come out, he put a cloth on her mouth thereafter she became sub-

conscious. Thereafter he had taken her away and sexually abused.

After her recovery she was medically examined by Dr. Neelam Singh

(PW.8). The MLC report is Ex.P.8. During the course of trial, besides

prosecutrix her mother Sua Bai (PW.2), brothers Girraj (PW.3) and

Sultan (PW.7), Dr. Neelam Singh (PW.8) and other witnesses were

examined. On the basis of evidence placed on record, the Trial Court

has found the prosecutrix a minor, aged about 13 years on the date of

incident. She has been subjected to rape by the appellant.

Accordingly, by impugned judgment appellant has been convicted for

offence under Section 376(3), 363 and 366 IPC and sentenced to

undergo 21 years rigorous imprisonment with fine of Rs.1000/-, 2

years rigorous imprisonment with fine of Rs.1000/- and 2 years

rigorous imprisonment with fine of Rs.1000/- respectively, with default

stipulation.

Shri Prabal Solanki, learned counsel for the appellant while

criticizing the impugned judgment for the purpose of instant

HIGH COURT OF MADHYA PRADESH Criminal Appeal No.212/2020 (Manju alias Janki Dhakad Vs. State of M.P.)

application for suspension of sentence submits that there is stark

variation in the deposition of witnesses particularly in the context of

age of the prosecutrix. While referring to the statements of Girraj

(PW.3) and Sultan (PW.7), it is stated that both these witnesses have

deposed that they are aged about 25 years and 30 years and the

prosecutrix stated to be three years younger to Girraj, therefore,

according to them the age of the prosecutrix was more than 21 years of

age, whereas the mother of the prosecutrix, Sua Bai (PW.2) though in

chief examination has stated that prosecutrix was 13 years of age as on

the date of incident, whereas in cross-examination para 7 she states

that she does not know the age of her daughter. Now in the backdrop

of the aforesaid evidence as regards age the Principal of the School

Pushpa (PW.4) has stated that her date of birth in the school register

(Ex.P.3) is 6.7.2005 at the time of her admission in Class I, whereas

the certificate (Ex.P.4) issued by her, the date of birth of prosecutrix is

5.6.2004, whereas in para 3 of her cross-examination she has clearly

stated that the recorded date of birth is not on the basis of any

evidence placed before her. In the light of the aforesaid evidence,

learned counsel submits that there is serious doubt about the age of the

prosecutrix. Under such circumstances, the prosecution ought to have

been made to undergo ossification test for age determination that has

not been done. That part, though it is alleged that the appellant had

HIGH COURT OF MADHYA PRADESH Criminal Appeal No.212/2020 (Manju alias Janki Dhakad Vs. State of M.P.)

made a call to the prosecutrix, in response to it she had come out of the

house, but no call details have been procured and placed before the

Trial Court. There was no DNA test conducted. Under such

circumstances, the complicity of the appellant in the alleged crime is

highly doubtful. There are material contradictions and omissions in the

evidence of the witnesses, but learned Trial Court has ignored all the

relevant facts. On these grounds, learned counsel prays that execution

of the jail sentence of appellant may be suspended and he may be

enlarged on bail.

Per contra Shri Rajesh Shukla, learned Deputy Advocate General

for the respondent/State while referring to the evidence of Principal of

School submits that the school certificate is a conclusive value in the

light of the judgment of the Hon'ble Supreme Court in the case of

Ashwani Kumar Saxena Vs. State of Madhya Pradesh, (2012) 9

SCC 750. The date of birth being shown to be 5.6.2004. The

prosecutrix was minor at the time of incident and therefore, no

exception can be taken in the impugned judgment in the context of

age of prosecutrix. True it is that there is no DNA test done, but in

the medical report Dr. Neelam Singh (PW.8) has stated that the hymen

was torn and healed, though there is no evidence of any sexual

violence causing injuries on the body of the prosecutrix. Under such

circumstances, once the prosecutrix is found to be minor even

HIGH COURT OF MADHYA PRADESH Criminal Appeal No.212/2020 (Manju alias Janki Dhakad Vs. State of M.P.)

provisions of section 7, 8 and 9 of POCSO Act are directly applicable

and therefore, conviction ordered and sentence awarded cannot be

interfered with even at this stage.

Appeal appears to be arguable on the aforesaid issues.

Upon hearing learned counsel for the parties though this Court

refrains from commenting upon the rival contentions touching the

merits of the matter but regard being had to the fact that the appellant

had already undergone 3 ½ year of sentence and there is no criminal

antecedents and the appeal is of year 2020 and there is no likelihood

of early hearing of the appeal in near future. Hence, in the obtaining

facts and circumstances, the appellant is held entitled for suspension of

sentence, and thus the application deserves to be allowed.

Consequently, I.A.No.22964/2020 is hereby allowed and it is

directed that the jail sentence of the appellant 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 and also subject to

deposit of the fine amount (if not already deposited). The appellant is

directed to mark his appearance before the Registry of this Court on

18/05/2022 and on other subsequent dates as may be fixed in this

behalf with following further conditions:-

HIGH COURT OF MADHYA PRADESH Criminal Appeal No.212/2020 (Manju alias Janki Dhakad Vs. State of M.P.)

(i) the appellant 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 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 the appellant, the medical examination of appellant be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action or any further test required be undertaken immediately. If not, appellant shall be released on bail in terms of the conditions imposed in this order.

Learned Deputy Advocate General is directed to send an e-copy

of this order to all the concerned including the concerned Station

House Officer of the police station for information and necessary

action.

Accordingly, the IA stands allowed and disposed of. E-copy/Certified copy as per rules.

             (Rohit Arya)                                      (Milind Ramesh Phadke)
                Judge                                                  Judge
Pawar*
    ASHISH PAWAR
    2022.03.03
    13:13:10
    +05'30'