Madhya Pradesh High Court
Manish Patel vs The State Of Madhya Pradesh on 22 August, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 284 of 2023
(MANISH PATEL Vs THE STATE OF MADHYA PRADESH)
Dated : 22-08-2023
Shri Pushpendra Dubey - Advocate for appellant.
Shri Alok Agnihotri- Government Advocate for respondent/State.
Heard on I.A. No.4248/2023, an application under Section 389(1) of the
Cr.P.C. for suspension of sentence and grant of bail to appellant arising out of
judgment dated 26.11.2022 delivered in Special Sessions Case No.188/2020 by
Special Judge (POCSO Act, 2012), District Rewa.
The appellant has been convicted under Section 376(2)(n) of IPC and
sentenced to undergo R.I. for 11 years with fine of Rs.1,000/-, under Section
376(3) of IPC and sentenced to undergo R.I. for 21 years with fine of
Rs.1,000/-, under Section 506 of IPC and sentenced to undergo RI for 3 years
and fine of Rs. 1,000/- and Section 5 & 6 of POCSO Act and sentenced to
undergo RI for 21 years and fine of Rs. 1,000/- with default stipulations.
Learned counsel for the appellant by taking this Court to the prosecution
story submits in short the as per the appellant on 12th September, 2020 the
prosecutrix along with her elder brother and maternal grandfather lodged a
complaint at Police Station City Kotwali District Rewa that on 28.03.2020 at
about 6 AM in the morning when she woke up she found accused standing in
front of her house and he induced her to go on the rooftop and when she went
there the appellant dragged her on the stairs and committed rape on her
thereafter on 28.03.2020 to 8th September, 2020 he committed rape number of
times by threatening her to kill and also promised to marry her. On the written
Signature Not Verified
Signed by: AKANKSHA
MAURYA
Signing time: 26-08-2023
12:05:58
complaint police conducted the investigation and after completion of
investigation filed the charge sheet bearing Crime No. 716/2020 Police Station
Kotwali, Rewa.
The trial Court framed charges and after recording of evidence and
hearing the appellant as per law passed judgment dated 26.11.2022 and
convicted the appellant as above. Against the conviction and sentence the
appellant is before this Court on the ground that statement of the witnesses in
the court are exaggerated. FIR was lodged after 4 days' of the last incident. No
reason is assigned for the delayed FIR. There were no struggle marks on the
private parts of the prosecutrix. The prosecutrix understood the impact of
relations. Collection of DNA was not proper hence, DNA report cannot be
relied for conviction.
Determination of age is not as per the law laid down by Hon'ble Apex
Court in Vishnu @ Undrya Vs. State of Maharashtra 2006 (1) SCC 283,
school record has not been produced from proper custody therefore he prays
for suspension of sentence.
Learned counsel for the appellant further submits that the appellant has
remained in custody from 14th September, 2020 to 26.11.2022 and from the
date of judgment till date inspite of being innocent.
On the other hand learned counsel for State supported the judgment of
trial court and prays for rejection of suspension of sentence application.
We have heard the learned counsel for the parties and perused the
record.
The age of the prosecutrix as per Ex. P/8 A is 13 years and in Ex. P/5 i.e.
statement of prosecutrix under Section 164 of Cr.P.C. it is mentioned as 13
years and 9 months. In scholar register Ex. P/5 C date of birth of the
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Signed by: AKANKSHA
MAURYA
Signing time: 26-08-2023
12:05:58
prosecutrix has been recorded as 1st December, 2006. As per the certificate of
the concerned school Ex. P/14 again date of birth of the prosecutrix has been
mentioned as 1st December, 2006.
The report was lodged on 8th September, 2020 therefore, at the time of
lodging of FIR in which prior incident have been mentioned the age of
prosecutrix comes to under 14 years.
We have also perused the statement of the PW-6 and there is nothing by
which it can be said that school records are manipulated or has not come from
proper custody.
The accused in his statement under Section 313 of Cr.P.C. has stated
that he has been falsely implicated because in the house of prosecutrix one Mr.
'X' used to come on this act he objected so that in the society, she may not get
a bad name therefore he has been falsely implicated but in para 9 of the cross
examination the prosecutrix deposed that Mr. 'X' also did wrong to her. The
trial before the Court was regarding the appellant- Manish Patel only. DNA
report Ex. C-1 is against the appellant. The learned Trial Court has minutely
dealt with all the grounds before it. It is well settled law that a minor
prosecutrix's consent is immaterial and absence of injury mark on private parts
is also of no significance.
Hence, after considering all aspects of the case and looking to the
documentary and oral evidence on record without commenting on the final
merits of the case, and looking to the nature of the case we do not find a fit
case to give benefit of suspension of sentence.
Accordingly, I.A. No. 4248/2023 stands dismissed.
Signature Not Verified
Signed by: AKANKSHA
MAURYA
Signing time: 26-08-2023
12:05:58
(SUJOY PAUL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
Akm
Signature Not Verified
Signed by: AKANKSHA
MAURYA
Signing time: 26-08-2023
12:05:58
