Madhya Pradesh High Court
Dheeraj Lodha vs The Catholic Syrian Bank on 12 May, 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 : 12-05-2023
Shri Anand Gupta-Advocate for the appellant.
Shri Rajesh Shukla- Deputy Advocate General for the respondent-State.
Heard o n I.A. No.6301/2023, which is first application under Section
389(1) of Cr.P.C. moved on behalf of appellant No.1-Dheeraj Lodha
seeking suspension of sentence and grant of bail.
Appellant No.1-Dheeraj Lodha stood convicted under Section 376(d) of
IPC and sentenced to undergo 20 years R.I. with fine of Rs.5,000/-, under
Section 3 read with Section 4 of Protection of Children from Sexual Offence
Act, 2012 and sentenced to undergo seven years' R.I. with fine of Rs.2000/-,
under Section 376(2) (i) of IPC and sentenced to undergo 10 years R.I. with
fine of Rs.3000/- and under Section 506 Part II of IPC and sentenced to
undergo one year R.I. with fine of Rs.3000/- with default stipulations vide
judgment of conviction and order of sentence dated 20.07.2018 passed by the
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 present appellant Dheeraj Lodha in the
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 5/13/2023
1:24:14 PM
house of Darshan Lodha. It is also alleged that Bhabhi of Samandhar Lodha
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 critical evaluation
of evidence placed on record has convicted the present appellant No.1-Dheeraj
Lodha along with other co-accused persons and sentenced as aforesaid.
Learned counsel for appellant No.1-Dheeraj Lodha while taking exception
to the impugned judgment submits that for three counts the said judgment
cannot be sustained: firstly, despite similar allegations and on same evidence,
co-accused Samundar has been acquitted vid e judgment dated 17.11.2021;
whereas present appellant has been convicted. There is no explanation
forthcoming in that behalf. Secondly, the alleged incident is said to be five
months preceding the date of FIR i.e. on 23.01.2017. There is no explanation in
that behalf as well. On the contrary, prosecutrix (PW/1) in Para-9 of her
statement has stated that initially, FIR was not lodged; however, no sooner the
news struck in the village, her mother scolded her and then, FIR was lodged.
Such explanation is not worth credence. Thirdly, even otherwise, the story as
implanted in the FIR, appears to be concocted as despite three successive
alleged incidents of rape, the prosecutrix had maintained blissful silence.
Though, it is alleged that the prosecutrix was minor but in her occification test
(Ex-P/19, Ex-P/20, Ex-P/21) her age has been accessed above 17 years and
below 18 years. Appellant is undergoing jail sentence since 01.02.2017. The co-
accused Bhuri Bai (appellant No.3) & Sonu alias Ganeshram Lodha (appellant
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No.2) have already been extended the benefit of suspension of sentence on
Signed by: SUNEEL DUBEY
Signing time: 5/13/2023
1:24:14 PM
21.02.2023 & 31/03/2023 respectively. Appeal is of the year 2018. There is no
likelihood of early hearing of the appeal. Hence, prays for suspension of
sentence and grant of bail.
Per contra, State counsel while supporting the impugned judgment
submits that with respect to the fact of delay in lodging of FIR or the incident
as narrated in FIR, the very fact that the prosecutrix was minor as on the date of
alleged incident since found proved, no fault can be found in the impugned
judgment convicting the present appellant. Moreover, no parity can be claimed
with co-accused Bhuri Bai & Sonu alias Ganeshram Lodha. Under these
circumstances, no exception can be taken for suspension of sentence.
However, he fairly submits that Samundar has been acquitted on same evidence
albeit by subsequent judgment.
Upon hearing counsel for the parties, though this Court refrains from
commenting upon the rival contentions touching merits of the case, but regard
being had to the facts and circumstances of the case in hand and the fact that
the present appellant is undergoing jail incarceration since 1.2.2017, we are of
the view that present appellant No.1-Dheeraj Lodha is entitled to the benefit of
suspension of sentence and grant of bail.
Accordingly, it is directed that the jail sentence of appellant No.1-
Dheeraj Lodha shall remain suspended and he 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 No.1-Dheeraj Lodha is directed to appear before the Registry
of this Court on 20/07/2023 and on other subsequent dates as may be fixed in
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 5/13/2023
1:24:14 PM
this behalf.
Accordingly, I.A. No. 6301/2023 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
(Dubey)
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 5/13/2023
1:24:14 PM
