Vijendra vs The State Of Madhya Pradesh
2024 Latest Caselaw 15272 MP

Madhya Pradesh High Court

Vijendra vs The State Of Madhya Pradesh on 22 May, 2024

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari

                                                              1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                      CRA No. 5113 of 2017
                                               (VIJENDRA Vs THE STATE OF MADHYA PRADESH)

                          Dated : 22-05-2024
                                Shri Shailendra Singh Nahar, learned counsel for the appellant.

                                Shri Kushal Goyal, learned            Dy. Advocate General for the
                          respondent/State.

Heard o n I.A. No.4427/2024 under Section 389(1) of Cr.P.C. for suspension of execution of sentence of sole appellant/accused- Vijendra in

S.T. No.209/2016 by First Additional Session Judge, Jhabua, District - Jhabua vide judgment dated 22/09/2017 whereby appellant/accused has been convicted under Section 302, 376(2)(f), 2(i) of the IPC and Section 6 r/w section 5(M) of the POCSO Act, 2012 and sentenced to undergo Life Imprisonment with fine of Rs.5000/-, Life Imprisonment for remainder of the life of the appellant with fine of Rs.5000/-, 3 years R.I. with fine of Rs.5000/- and 10 years R.I. with fine of Rs.5000/- with default stipulation.

2. The appellant has been convicted for committing penetrative sexual assault towards a child of 9-10 years and committing the murder of the victim

child by strangulation and causing the disappearance of the evidence on 09.09.2016.

3. This application has been preferred on the ground that the trial Court has erred by convicting and sentencing the appellant in absence of any cogent material or evidence on record. The trial Court has erred in appreciating there was no injury found by the parents, brother and sister of the deceased at the time of inquest enquiry under Section 174 of the Cr.P.C. on 09.09.2016 however after P.M. report on 11.09.2016, a false & concocted case has been

framed. The trial Court has erred in not appreciating that offence under Section 300 of the IPC has been alleged to be to committed on 09.09.2016 but as per post mortem report (Ex.P/12) death has been occurred on 10.09.2016. The learned trial Court while convicting the appellant for rape and murder of the deceased has relied very heavily on DNA report (Ex.P/32) but the bare perusal of the same shows that while concluding the report it has been opined that on clothes of the deceased Vaginal Swab and Vaginal slide a very low non- interpretable Male DNA profile has been found. In the light of the said observation by no stretch of imagination it can be said that was not the appellant who committed rape and murder upon the deceased.

4. It is also submitted on behalf of the appellant that the court below has erred by not appreciating the fact that as per prosecution own version when family members of the deceased came to know that prosecutrix was detained by the appellant a search was carried out. During the search well filled with water was checked by empting the same and in that also of the deceased was not seen and thereafter family members of the deceased went to police station to lodge the report when family members of the deceased were at Police Station one Kantu received a phone call that dead body of the deceased is lying in a well. This two set of evidence clearly casts doubt on conduct of the prosecution and on its witnesses. It also shows that just in order to complete the investigation appellant has been arraigned as accused for no fault on his part.

5. It is also submitted on behalf of the appellant that the learned trial Court has erred by not appreciating that during the course of trial prosecution has examined Dr. Sanjay Kumar as PW-7 who performed postmortem and he

has given two opinions in regard to the cause of death of the deceased. On the

one hand in paragraph 9 of his deposition he has stated that according to them (Postmortem team) the cause of death of the deceased is strangulation whereas in paragraph 23 of his opinion the said doctor has accepted that the cause of the death of the deceased can be drowning. In the light of said material on record, the benefit of doubt should have been extended in favour of the appellant.

6. It is also submitted on behalf of the appellant that the learned trial Court has erred by not considering an important fact that the entire case of the prosecution rests on "Circumstantial Evidence and the cardinal rule applicable in the case of circumstantial evidence is the circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established. That those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused thatthe circumstances taken cumulatively should form chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused. In the light of the said principal and with facts of the case in hand prosecution has not been in a position to show that it is appellant alone and none else is responsible for the crime. The time gap of seeing appellant and deceased together (as alleged) and the time when dead body of the deceased has been fouind so big approximately it is 30 hours, that it cannot be said that it

is appellant who has committed the offence.

7. It is also submitted on behalf of the appellant that at this stage it is also relevant to mention and rely on the DNA report Ex.P/32 which also does't lend any support to the story of the prosecution. Therefore, there is no iota of material on record to wshow that it is appellant alone who is responsible for the

murder of the deceased. The learned trial Court has erred by not considering the fact that there are material omission and contradictions in the version of the prosecution and the benefit of the same should be extended in favour of the appellant. The trial Court has erred by not appreciating the fact that the agency has done a very casual investigation in the instant case. The learned trial court has erred by not considering and appreciting the defence of the appellant as laid by him.

8. It is also submitted on behalf of the appellant that learned trial court has erred by not appreciating the fact that appellant has no nexus with the alleged offence. The learned trial court has erred by imposing a very harsh sentence and fine on the appellant for no fault on his part. The appellant is in custody since 21.09.2016, almost 7 years and 6 months, and there is no chance of disposing of this appeal in further 8 to 10 years. The appellant craves leave of this Court to urge and argue other grounds at the time of final hearing of this appeal. The appellant is ready to furnish adequate surety and shall abide by all the directions and conditions which may be imposed by the Court. Therefore, it is prayed that the remaining jail sentence of the appellant may be suspended and he may be released on bail.

9. Counsel appearing on behalf of the victim has opposed the prayer vide document No.4025/2024 has opposed the prayer by submitting that FSL report Ex.P/29 and DNA report Exhibit P/32 and PM report and testimony of Dr. Sanjay Kumar Bamaniya (PW-7) alongwith query report (Ex.P/14) has clearly established that the offence of penetrative sexual assault and murder have been committed towards the child victim who was aged of 9-10 years and the testimony of sister of the deceased victim (PW-1) has raised the presumption under Section 29 of the POCSO Act, 2012 and appellant has been unable to

rebut that presumption. Hence, no case for suspension of sentence is made out. It is further submitted that the appellant's total period of custody is less than 8 years. Therefore, the jail sentence of the appellant should not suspended.

We have perused the impugned judgment dated 22.09.2017 and the record of the trial Court.

10. In the light of evidence regarding age of the victim child and the finding of the trial Court regarding offence of commission of sexual assault towards the victim and murder of the victim and testimony of PW-1 and presumption under Section 29 of the POCSO Act, 2012 and the examination of the appellant/accused under Section 313 of the Cr.P.C., this application of the suspension of jail sentence of the appellant is not fit to be allowed at present.

11. Accordingly, I.A. No.4427/2024 under Section 389(1) of Cr.P.C. for suspension of execution of sentence of sole appellant/accused- Vijendra is rejected at present.

List in due course.

                               (S. A. DHARMADHIKARI)                                 (GAJENDRA SINGH)
                                        JUDGE                                             JUDGE

                          VS