Madhya Pradesh High Court
Ghani @ Dhani @ Devendra vs The State Of Madhya Pradesh on 15 February, 2024
Author: Rohit Arya
Bench: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 8606 of 2019
(GHANI @ DHANI @ DEVENDRA Vs THE STATE OF MADHYA PRADESH)
Dated : 15-02-2024
Smt. Uma Kushwah- Advocate for the appellant.
Dr. Anjali Gyanani - Public Prosecutor for respondent/State.
I.A. No.23687/2023 an application for change in counsel is taken up,
considered and allowed for the reasons mentioned therein.
Smt. Uma Kushwah and her associates are permitted to prosecute the
instant appeal on behalf of the appellant.
Heard on I.A.No.14412 of 2023, first application under Section 389(1)
Cr.P.C. for suspension of sentence and grant of bail moved on behalf of
appellant- Ghani @ Dhani @ Devendra.
Present appellant stood convicted under Sections 363, 366, 376(2)(n)
IPC and under Section 5L/6 of the POCSO Act and sentenced to undergo RI
for five years with a fine of Rs.500/-, RI for ten years with a fine of Rs.1,000/-,
rigorous imprisonment for life with a fine of Rs.1,000/- and rigorous
imprisonment for life with a fine of Rs.1,000/- with default stipulations vide
judgment of conviction and order of sentence dated 19.03.2019 passed by II
Additional Sessions Judge, Sheopur, District Sheopur (M.P.) in Sessions Trial
No.62 of 2018.
The present appellant so far has undergone actual jail sentence of five
years and six months as transpired during the course of arguments.
As per prosecution story, father of prosecutrix Kailash Aadiwasi and
accused Ghani @ Devendra Adiwasi used to perform labour work to Prahlad
Meena at village Sheeshawadi. On 16.06.2018, complainant, his daughter-
prosecutrix and other members of the family after dinner went to sleep. In the
morning at 5 of that day, they could not found the prosecutrix on her cot and
accused Ghani @ Devendra was also found to be missing. In this connection,
Kailash (PW-1)- father of the prosecutrix got registered FIR bearing Crime
No.76/2018 (Ex.P-1) at Police Station Maanpur, District Sheopur (M.P.) and
stated that after intense search when he reached at the matrimonial home of
accused Ghani @ Devendra at village Adwaar, they found the prosecutrix there
and then he along with his daughter/prosecutrix reached at Police Station
Maanpur, where prosecutrix was enquired and she stated before the Magistrate
that on the date of incident when she was 14 years old (minor) in the wee hours
i.e. at about 2-3 in the night , accused/appellant got her awaken and enticed for
performance of marriage. Since she had no understanding about the same, she
got involved in what the accused was saying and went along with him to his
brother Raju house at village Nivodapeer and stayed there at hutment where
accused appellant committed rape on her several times. Then accused took her
to his matrimonial place where his wife resides and there also he committed rape
over. After three days while residing at village Adwaar, accused/appellant fled
away from there on seeing her father and uncle approaching there. Investigation
was set in motion. Upon completion of investigation including recording of
statements, collection of evidence and necessary formalities, challan was filed.
The Sessions Court on appreciation of evidence placed on record convicted
and sentenced the present appellant as mentioned above.
Learned counsel for the present appellant while taking exception to the
impugned judgment of conviction and order of sentence submits that the
Sessions Court has not appreciated the evidence placed on record in correct
perspective. The judgment suffers from surmises and conjectures. It is further
submitted that there are material contradictions in the statements of the
prosecution witnesses. Besides, there is no injury on the body of the
prosecutrix in the medical report. It was a case of consent. Prosecutrix had
gone with the appellant on her volition and stayed with him as husband-wife.
Appellant so far has suffered 05 years and 06 months' incarceration and the
appeal being of 2019 is not likely to be decided in the near future. On these
grounds, learned counsel submits that the present appellant may be extended
the benefit of suspension of sentence and grant of bail.
Per contra, learned Public Prosecutor, appearing on behalf of the
respondent/State, while supporting the judgment impugned submits that no
exception can be taken in the matter of suspension of sentence and grant of
bail, regard being had to the nature and the gravity of offence found proved
against the present appellant.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions so advanced touching merits of the
case, regard being had to the fact that present appellant so far has undergone
incarceration of five years and six months, the appeal which is of the year 2019
is not likely to be decided in the near future, we are of the view that present
appellant is entitled to the benefit of suspension of sentence and grant of bail.
Accordingly, I.A.No.14412 of 2023 stands allowed and it is directed that
the jail sentence of appellant- Ghani @ Dhani @ Devendra 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
his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac
only) with one solvent surety in the like amount to the satisfaction of the Trial
Court.
Appellant - Ghani @ Dhani @ Devendra is directed to appear before the
Registry of this Court first on 20.05.2024 and on other subsequent dates as
may be fixed in this behalf.
Accordingly, the said IA 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) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
vc
VARSHA
CHATURVEDI
2024.02.16
11:03:50 +05'30'
