Madhya Pradesh High Court
Dheeraj Lodha vs The Catholic Syrian Bank on 21 February, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 5796 of 2018
(DHEERAJ LODHA AND OTHERS Vs THE CATHOLIC SYRIAN BANK AND OTHERS)
Dated : 21-02-2023
Shri Anand Gupta - learned Advocate for the appellant.
Shri Rajesh Shukla, learned Deputy Advocate General for the
respondent-State.
Heard on I.A. No. 20120/2022, which is sixth repeat application under
Section 389(1) of Cr.P.C. moved on behalf of appellant No. 3 Bhuri Bai. Earlier
IA No.13690/2020 was rejected on merit for suspension of sentence and grant
of bail vide order dated 30/04/2021.
Appellant No .3 stands convicted under Section 17 of Protection of
Children from Sexual Offence Act, 2012 to undergo 20 years rigorous
imprisonment with a fine of Rs. 5000/- vide judgment dated 20/07/2018 passed
by Special Judge (POCSO Act), District Guna (M.P.) in Special Sessions Trial
No. 34/2017.
As per prosecution story, complainant lodged a FIR on 23/01/2017 that
her daughter/prosecxutrix 15 days ago had informed her that 5 months ago she
was sexually abused by one Samandhar Lodha near tube-well where she went to
collect chaff. Thereafter, Samandhar Lodha caught hold her hand and
undressed her clothes and sexually abused. He also threatened her of dire
consequence, if she informs anyone about the incident. Thereafter, one month
ago she was also sexually abused by one Dheeraj in the house of Darshan
Lodha. It is also alleged that Bhabhi of Samandhar Lodha (present appellant)
had asked prosecutrix to talk to Samandhar and become a girlfriend. On the
aforesaid allegations, investigation started. After collection of evidence,
statement of material witnesses were recorded under Section 161 of the Cr.P.C
and other material was placed on record. Thereafter, challan was filed and case
was committed to the Sessions Court. The Sessions Court on consideration of
evidence placed on record has convicted the appellant No.3 along with other
co-accused persons and sentenced as aforesaid.
Learned counsel for appellant No.3 while taking exception to the
impugned judgment submits that the impugned judgment suffers from perversity
of approach and relevant evidence has not been considered. The judgement is
based on conjectures and surmises. Referring to para No.1 of the statement of
prosecutrix (P.W.1) recorded before the Court below, it is submitted that sole
allegation against the appellant is that she asked the prosexutrix to be friendly
with Samandhar. On the basis of the aforesaid statement, appellant stands
convicted. Learned counsel for the appellant also refers para No.58 of the
judgment to criticize the judgment as aforesaid. It is submitted that appellant is a
lady and has already suffered jail incarceration of four years and half months
and has no criminal antecedents. Appeal is of year 2018. There is no likelihood
of hearing of appeal. Hence, prays for suspension of sentence and grant of
bail.
Per contra, State counsel opposes the application supporting the order
impugned with submissions that involvement of appellant can not be ruled out
regard being had to the evidence on record well discussed in the impugned
judgment. Therefore, she is not entitled for suspension of sentence and grant of
bail.
Upon hearing counsel for the parties, though this Court refrains from
commenting upon rival contentions touching merits of the case but regard being
had to the fact that appellant is a lady and is in custody since last four years
and half months and appeal is of year 2018 and early hearing of appeal is not
possible, besides regard being had to the material on record, in the obtaining
facts and circumstances, this Court is inclined to grant benefit of suspension of
sentence and grant of bail to the appellant No. 3.
Accordingly, it is directed that the jail sentence of the appellant No. 3
Bhuri Bai shall remain suspended and she be released on bail on her
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 No. 3 is directed to appear before the Registry of this Court on
05/04/2023 and on other subsequent dates as may be fixed in this behalf with
following further conditions:-
(i) the concerned jail authorities are directed that before
releasing the appellant, the medical examination of the
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;
(ii) violation of conditions, State is free to apply for
cancellation of bail.
Accordingly, I.A. No. 20120/2022 stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of deciding the
instant I.A. and shall have no bearing on the merits of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Prachi
PRACHI
MISHRA
2023.02.22
11:33:31
+05'30'
