Deewan vs The State Of Madhya Pradesh
2023 Latest Caselaw 6656 MP

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            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                            CRA No. 2917 of 2022
                      (DEEWAN Vs THE STATE OF MADHYA PRADESH)

Dated : 25-04-2023
      Shri Atul Gupta, learned counsel for the appellant.

      Shri A. K. Nirankari, learned Public Prosecutor for the State.
      Learned counsel for the appellant seeks to withdraw IA No. 7136/2023,
an application moved on behalf of appellant Deewan Rawat for interim bail.
      Prayer accepted.
      IA No. 7136/2023 stands dismissed as withdrawn.

      Heard on IA. No.7135 of 2023, which is second repeat application
under Section 389 (1) of Cr.P.C. seeking suspension of sentence and grant of
bail moved on behalf of appellant - Deewan Rawat. His first application (IA No.
9716/2022) was dismissed as withdrawn vide order dated 27.07.2022.
      Appellant Deewan Rawat stood convicted under Sections 376(d) and 366
of IPC and sentenced to undergo 20 years RI with fine of Rs.10000/- and 5
years RI with fine of Rs.5000/- respectively, with default stipulations vide
judgment of conviction and order of sentence dated 22.02.2022 passed by
Second Additional Sessions Judge / Presiding Officer, Special Court (POCSO

Act), Shivpuri (M.P.) in Special Sessions Trial No.107/2018.
      A s per prosecution story, a missing report was filed by father of the
prosecutrix on 7.10.2018 inter alia alleging that after dinner in the night hours of
6th October, 2018 all family members including prosecutrix were fast asleep at
home. However in the morning the prosecutrix was found missing. Despite
extensive search she was not recovered, therefore, missing report was filed. On
such information police went into action and recovered the prosecutrix on
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13.10.2018

. In her statement under Section 161 CrPC the prosecutrix has named four persons, vis, Deewan (present appellant), Pawan, Chhotu and Devendra inter alia alleging that having heard the noise of stone pelting at the door of her house in the intervening night of 6th and 7th October, 2018, she came out of house. Deewan (present appellant) dragged her out of house and she was gagged, therefore, she could not scream. Thereafter both Pawan and Deewan had taken her away on motorcycle to the railway station wherefrom they had taken her to Shivpuri, Kota and Jaipur by train. At Jaipur railway station she remained for three days where she was sexually abused by the present appellant. However, in her statement under Section 164 CrPC she did

not name Chhotu and Devendra. On aforesaid statement, investigation was completed, challan was filed and case was committed to the Sessions Court for trial. The Sessions Court, upon critical evaluation of the evidence available on record and recording of statements, acquitted accused Chhotu and Devendra, however convicted and sentenced the present appellant and Pawan, as referred above.

Shri Atul Gupta, learned counsel for appellant while taking exception to the impugned judgment inter alia submits that the statements of the prosecutrix recorded under Sections 161, 164 and before the trial Court remained inconsistent, inasmuch as omission of the name of Chhotu and Devendra is writ large in 161 statement. That apart, her ocular evidence as contained in paras 16, 17 and 18 of the judgment suggests that she has cooked up the story of commission of offence by the appellant for the simple reason that despite having been at public places and also coming across police personnel at different places, she did not divulge the name of appellant, who had sexually abused her and, therefore, her conduct is unnatural. On the question of age of

the prosecutrix, learned counsel for the appellant refers to the deposition of Dr. M.L. Aggarwal (DW-1) and Ossification Report of the prosecutrix (Ex. D/4), wherein she was found to be above 18 years and below 20 years. Thus, it was a case of consent. The DNA Report is negative. Therefore, the impugned judgment having found sexual abuse proved is based on surmises and conjectures. Even otherwise, the appellant was on bail during trial and now so far he has already undergone one year four months' jail incarceration. The appeal is of 2022. There is no likelihood of early hearing of this appeal in the near future. Hence, learned counsel for the appellant prays for suspension of sentence and grant of bail on behalf of appellant - Deewan.

Per contra, Shri Nirankari, learned Public Prosecutor, while supporting the judgment impugned, submits that the age of the prosecutrix has rightly been found to be of 16 years as per school report as well discussed in para 35 of the judgment. That apart, merely for the reason that DNA report is negative, this by itself shall not suggest that the appellant did not sexually abuse the prosecutrix as she has categorically stated in her 161 statement and in ocular evidence that the appellant and Pawan both had sexually abused her at railway station. The appellant has undergone only one year four months jail sentence as against twenty years sentence. Therefore, no case is made out for suspension of jail sentence and grant of bail to the appellant.

Upon hearing learned counsel for the parties, though this Court refrains from commenting on rival contentions touching merits of the case, but regard being had to the obtaining facts and circumstances, prima facie we are of the view that the appellant is entitled for suspension of jail sentence.

Accordingly, it is directed that the jail sentence of appellant Deewan shall

remain suspended during pendency of present appeal and he shall 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. Appellant is directed to appear before the Registry of this Court first on 26th June, 2023 and on other subsequent dates as may be fixed in this behalf with following further conditions:-

(i) 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, his medical examination be conducted through the jail doctor and if it is prima facie found that he is having any symptom of COVID-19 then the consequential follow up action including the isolation/quarantine or any further test required be undertaken immediately;

(iii) On violation of the conditions, State is free to apply for cancellation of bail.

Accordingly, the I.A. No. 7135 of 2023 stands allowed and disposed of.

Observations on facts, if any, are only for the purpose of disposal of the instant application for suspension of sentence and shall have no bearing on the merits of the appeal.

Certified copy as per rules.

  (ROHIT ARYA)                                   (MILIND RAMESH PHADKE)

      JUDGE                                JUDGE
yog




                          YOGESH
                          VERMA
                          2023.04.26
       VALSALA
       VASUDEVAN
       2018.10.26
       15:14:29 -07'00'
                          11:40:48
                          +05'30'