Madhya Pradesh High Court
Pankaj vs The State Of Madhya Pradesh on 25 January, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 8225 of 2022
(PANKAJ Vs THE STATE OF MADHYA PRADESH)
Dated : 25-01-2023
Shri Jayant Neekhra - Advocate for the appellant.
Shri Akhilendra Singh- Government Advocate for the respondent/State.
Shri R.K.Shrivastava - Advocate for the Objector.
I.A.No.17484/2022 an application for suspension of sentence and grant
of bail on behalf of the appellant Pankaj is taken up.
Appellant has been convicted for the offence punishable under Section 4
of the Protection of Children from Sexual Offence Act, 2012 and sentenced to
undergo for RI for seven years with fine of Rs.5,000/- with default stipulation.
Learned counsel for the appellant submits that as per the initial allegations
and the story of the prosecution, main accused is Jitendra Tiwari. The name of
appellant Pankaj does not find place in both the statements recorded under
Section 161 of Cr.P.C. Attention of this Court is drawn on both the statements
namely Ex.P-14 and Ex.P-15. In the FIR and statement of victim recorded
under Section 164 of Cr.P.C. also she did not take the name of present
appellant at all.
The Court statement of mother of the victim (PW-2) is relied upon where
she has not made any allegation against appellant-Pankaj. For the same purpose
Court statement of victim (PW-1) was also taken.
Shri Neekhra, learned counsel for appellant Pankaj submits that the whole
conviction of appellant is founded upon the DNA report. In that case, the
sampling/collection process, the custody and finding should have been
examined by the Court minutely. The entire process is polluted and Court
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 27-Jan-23
10:55:26 AM
below has not taken pains to consider the same.
It is submitted that identification form of this appellant is Ex.P-25 and
sample was allegedly taken by Dr.Abhay Soni (PW-7) on 01.12.2017, whereas
SDOP Pathak (PW-19) collected the said sample on 02.12.2017. The sample of
other co-accused persons Jitendra Tiwari and Brajveer were collected on
29.11.2017 by Ex.P-22 and Ex.P-23.
The next reliance is on Ex.P-77 dated 30.11.2017, whereby S.P. has sent
certain samples of accused persons to Forensic Science Laboratory (FSL).
This letter does not include the name of appellant-Pankaj.Ex.P-78 dated
04.12.2017 relates to a blood sample, which is marked as "H" which is allegedly
sent by memo dated 30.11.2017. The emphasis is laid on the aforesaid dates by
contending that if sample was taken by Dr. Abhay Soni on 01.12.2017 and
collected by SDOP on 02.12.2017, how it could have been sent by memo dated
30.11.2017 to FSL. It is something like putting the cart before the horse. Ex.C-
80 refers about sample "H", which relates to present appellant which was sent
on 30.11.2017. Again question arises as to how a sample collected at a later
point of time on 1.12.2017 could have been sent for FSL on 30.11.2017. Thus
the collection of the sample is highly doubtful.
T he statement of Dr. Abhay Soni (PW-7) is referred to show that he
nowhere deposed that he had taken blood sample of this appellant. Indeed, he
deposed about semen slides Ex.P-32. Likewise, statement of PW-19 (Para
Nos.-10 and 11) are referred to show that he has categorically deposed that
blood sample of this appellant was not taken before him. Thus, it is argued that
process of collection, custody and sending of sample is totally polluted and
does not inspire confidence. The Court below has failed to examine these
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anomalies and mechanically relied upon the DNA report, which became
Signed by: SARSWATI
MEHRA
Signing time: 27-Jan-23
10:55:26 AM
foundation of appellant's conviction. The appellant was on bail during the trial
and did not misuse the liberty. The final hearing of this appeal will take time.
Thus, remaining jail sentence of this appellant may be suspended.
Shri Akhilendra Singh, learned Government Advocate opposes the prayer
on the basis of objection and findings given in para nos.76 and 77 of impugned
judgment.
Learned counsel for the Objector submits that he has no objection, if
remaining jail sentence of this appellant is suspended.
Considering the aforesaid and without expressing any conclusive opinion
on the merits of the case, we deem it proper to suspend the remaining jail
sentence of appellant. Accordingly, I.A.No. 17484/2022 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of the appellant is hereby suspended and it is directed
that on furnishing a personal bond for a sum of Rs.30,000/- (Rupees Thirty
Thousand Only) along with one surety in the like amount to the satisfaction of
the trial Court, appellant Pankaj be released on bail with a further direction to
appear before the Trial Court, Seoni on 24/04/2023 and on such other dates
as may be fixed by the trial Court in this regard during the pendency of this
appeal.
Certified copy as per rules.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
sm
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 27-Jan-23
10:55:26 AM
