Madhya Pradesh High Court
Deepak Rajak vs The State Of Madhya Pradesh on 5 October, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 5 of 2023
(DEEPAK RAJAK Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 05-10-2023
Mr. Naval Kishore Gupta - learned counsel for appellant.
Mr. Rajeev Upadhyay - Public Prosecutor for respondent - State.
Heard on I.A. No.17030/2023, which is second application under
Section 389 (1) of Cr.P.C. for suspension of sentence and grant of bail filed on
behalf of appellant- Deepak Rajak.
Appellant stood convicted under Section 363 of IPC r/w 3(2)(v-a) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(in short, Act), Section 366 of IPC r/w 3(2)(v) of the Act and 376(3) r/w 3(2)(v)
of the Act and sentenced to undergo two years RI with fine of Rs.1,000/-,
imprisonment for life with fine of Rs.1,000/- and imprisonment for life with fine
of Rs.2,000/- with default stipulation respectively vide judgment of conviction
and order of sentence dated 24.11.2022 passed by Special Judge (POCSO Act
2012), Shivpuri (M.P.) in S.C. No.90/2021.
Appellant so far has undergone incarceration of three years and two
months.
A s per prosecution story, an FIR was lodged on 29.02.2020 by the
prosecutrix accompanied by her parents and brother to the effect that on
26.01.2020 while her father was ill and her mother & sister had gone to the field
and she was alone at the home, the present appellant, who was her neighbour,
came to her house. He made false promise of marriage and thereafter
manipulated her and she was subjected to sexual abuse. Besides, the appellant
had taken her to Jhansi and went to take the ticket while leaving her at Jhansi
Signature Not Verified
Signed by: BARKHA
SHARMA
Signing time: 05-Oct-23
5:28:57 PM
platform. Thereafter, the prosecutrix came back home by traveling in the bus.
On such allegations, the investigation was started. Upon completion of
investigation, challan was filed and the case was committed to the Sessions
Court for Trial. The Sessions Court after proper evaluation of evidence placed
on record convicted and sentenced the appellant as mentioned above.
Learned counsel for the appellant, while taking exception to the impugned
judgment of conviction and order of sentence submits that the appellant is
innocent and has been falsely implicated. It is a case of consent. The
prosecutrix on her own volition had gone with the appellant. There is delay of
one month in lodging of FIR. There is no medical evidence which supports the
case of prosecution. As per Ex.D-5, medical ossification report, her age is 16-
18 years. The prosecutrix's father PW-15 himself stated that date-of-birth of the
prosecutrix was mentioned in the school record on hypothetical basis, for
which they have no record. In the aforesaid circumstances, the impugned
judgment is based on surmises and conjectures and suffers from vice of
perversity. The appellant has already suffered incarceration of 3 years and 2
months. There is no likelihood of the early disposal of the appeal in the near
future. Under such circumstances, learned counsel for the appellant prays that
benefit of suspension of sentence may be extended to present appellant.
Per contra, learned counsel for the State while supporting the impugned
judgment opposes the suspension application and prays for its rejection with
submission that the date-of-birth of the prosecutrix was 10.06.2007 and the
incident took place on 26.01.2020 and thus, at that time she was 14 years of
age, therefore, her consent is irrelevant. It is a case of manipulation and sexual
abuse of a minor child at the hands of the present appellant. Hence no
exception can be taken in the impugned judgment for suspension of sentence.
Signature Not Verified
Signed by: BARKHA
SHARMA
Signing time: 05-Oct-23
5:28:57 PM
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon the rival contentions so advanced touching the merits of
the case, but regard being had to the fact that that present appellant so far has
suffered incarceration of 03 years and 02 months and there is no likelihood of
early hearing of the appeal, in the obtaining facts and circumstances, appellant is
held entitled to suspension of jail sentence. Accordingly, I.A.No.17030/2023
stands allowed and it is directed that jail sentence of appellant shall remain
suspended during pendency of the present appeal and he shall be released on
bail subject to verification of the factum of depositing the fine amount and on
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. He is directed to appear before the Registry of this Court first on
07.12.2023 and on other subsequent dates as may be fixed in this behalf.
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.
A copy of this order be sent to the concerned Court below for
compliance.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
bj/-
Signature Not Verified
Signed by: BARKHA
SHARMA
Signing time: 05-Oct-23
5:28:57 PM
