Madhya Pradesh High Court
Dipesh Pandya @ Bhola vs The State Of Madhya Pradesh on 28 March, 2022
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
CRIMINAL APPEAL No. 1335 of 2021
(Dipesh Pandya @Bhola Vs. State of M.P)
ORDER
Indore:-28.03.2022
Shri Vivek Singh, learned counsel for the appellant.
Shri Kamal Kumar Tiwari, learned Govt. Advocate for the
respondent/State.
Heard on I.A. No.21223/2021, first application under Section 389
(1) of the Cr.P.C. for suspension of jail sentence filed on behalf of the
appellant-Dipesh [email protected] Bhola.
The present appeal has been filed against judgment dated
05.02.2021 passed by Special Judge, (POCSO Act), Dewas in Sessions
Trial No.352/2019 whereby he has been convicted as under:-
Conviction Sentence
Section and Act Imprisonment Fine if deposited Imprisonment in lieu
details of fine
5g/6 of POCSO ACT 20 years R.I. Rs.10,000/- 1 year additional R.I.
As per prosecution story, the house of the appellant is near the
house of the prosecutrix where three years ago Kunal met with the
prosecutrix thereafter, he used to call the prosecutrix on her mother's
phone. The allegation against the appellant is that he used to facilitate
them in the meeting. One year ago, Kunal called the prosecutrix in the
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room of this appellant and on the false insurance of marriage committed
rape upon her and at that time this appellant was standing outside the
room to keep the watch thereafter, Kunal used to blackmail the
prosecutrix and also took Rs.3,000/- from her. On 21.07.2019 mother of
the prosecutrix came to know that correct name of Kunal is Mushabir
Sheikh then asked this fact from the prosecutrix thereafter, prosecutrix
disclosed about the rape committed by Mushabir and FIR was lodged at
crime no.459/2019 against Mushabir as well as this appellant-Dipesh.
After undergoing the entire trial both the accused have been convicted
for the offense punishable under section 376(D) and 384 of the IPC as
well as 5G/6 of the POCSO Act.
Shri Singh learned counsel for the appellant submits that so far
this appellant is concerned he was initially tried under section 376(D)
(A) of the IPC but convicted under section 376(D) of the IPC only as he
was present along with Mushabir who committed the rape. Shri Singh
has referred the statement of the prosecutrix in which it is disclosed that
rape was committed by Mushabir but this appellant was only standing
outside the house to keep the watch. There is no allegation of
committing rape by this appellant. It is further submitted that the
prosecutrix was having intense love affair with Mushabir and all the
love letters and greeting cards were exhibited as D-1 to D-11. Only she
met with Mushabir in the house of the appellant and he has been added
as an accused and convicted under section 376(D) of the IPC otherwise,
there is no allegations against the appellant that the appellant shared
common intention with Mushabir Sheikh for committing rape upon her
however, in cross-examination prosecutrix has admitted that she used to
treat this appellant as brother.
In support of his contention Shri Singh has placed reliance over
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the judgment passed by the apex court in case of Manoj Mishra Alias
Chhotkau V/s State of Uttar Pradesh reported in the year 2022 Vol.1
SCC (criminal) 143 and the para-16 and para-17 of the judgment is
reproduced below:-
"16. The question which would however arise for
our consideration is as to whether the charge framed
against the accused under Section 376-D IPC would be
justified and as to whether the case would qualify to be
one of gang rape. On this aspect, the evidence of PW-1
and PW-2 does not establish the same. The evidence of
PW-3 i.e., the prosecutrix is not categorical in as much as
the prosecutrix has alleged that when she was sitting in
her thatched hut, the appellant came after parking his
vehicle (tractor) besides the road and asked for water. At
that time, he asked where her father was and after she
told that he had gone out, the appellant had forced
himself upon her. She has further alleged that he kept
doing the wrong act with her for four months and she
became pregnant. When she disclosed the pregnancy and
asked the appellant to marry her, he did not yield.
Therefore, insofar as the incident of rape attributed to the
appellant it does not disclose that all the accused had
committed rape on her or had the common intention and
aided the commission. It is no doubt true that she refers
to the incident on the day she was said to have been taken
away by all the accused. In that regard except stating that
she was carried to the home of a lady who they were
calling as Aunty, and at her place committed sexual act
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there is no other evidence available on record to indicate
that the spot was visited in the course of the investigation
and the lady who is alleged to have aided has either been
apprehended or examined. It is also not established that
all of them were seen together or aided with common
intention.
17. In fact, the very conclusion reached by the
High Court itself would indicate that the allegation of
rape as established by the prosecution is against the
appellant and the other accused are not involved in such
act. The relevant conclusions read as hereunder:
"23. It has also been placed before the court that the
other co-accused were real brothers and their father, as
such the truthfulness of the incident is highly improbable.
The main co-operation of other co-accused appears to be
in enticing the prosecutrix away but the allegation of
specific rape has been levelled against the present
accused-appellant only and that too four months prior to
the incident on one threat or the other. This also gives a
reason for enticing her away and getting her married to
Ram Asrey alias Sirri."
Learned Govt. Advocate for the respondent/State opposes the
application for suspension of jail sentence of the appellant by submitting
that on the basis of the provisions of section 376(D) of the IPC and
explanation of 3/4, 5G of POCSO Act this appellant has rightly been
convicted despite he has committed any rape.
We have gone through the record and the judgment passed by the
apex court in case of Manoj Mishra (supra) there is no material
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available on record to show that this appellant shared common intention
at the time of commission of the offence hence, considering the facts and
circumstances of the case, this Court is of the considered opinion that the
application for suspension of custodial sentence moved on behalf of the
appellant deserved to be allowed.
Accordingly, I.A. No.21223/2021, is allowed and it is directed that
subject to depositing fine amount and on furnishing personal bond by the
appellant in the sum of Rs.50,000/-(Rupees Fifty Thousand only) with
one solvent surety in the like amount to the satisfaction of the learned
trial Court for his appearance before the Court, the execution of custodial
part of the sentence shall remain suspended, till the final disposal of this
appeal.
The appellant after being enlarged on bail, shall mark their
presence before the registry of this Court on 12/10/2022 and on all such
subsequent dates, which are fixed in this regard by the Registry.
I.A. No.21223/2021, IA No.2266/2022 and IA No.21224/2021
stands disposed of.
List the appeal for final hearing in due course.
Certified copy, as per rules.
(VIVEK RUSIA ) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Ajit/-
AJIT Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001, st=Madhya Pradesh,
KAMALASA
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KAMALASANAN
Date: 2022.03.30 18:42:48 +05'30'
