Madhya Pradesh High Court
Devendra vs The State Of Madhya Pradesh on 7 April, 2025
1 CRA-397-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 397 of 2025
(DEVENDRA Vs THE STATE OF MADHYA PRADESH AND OTHERS )
Dated : 07-04-2025
Shri Deepak Kumar Rawal, learned counsel for the appellant.
Shri Sudeep Bhargava, learned GA for the respondent/State.
Ms.Pragya Jaiswal, learned counsel for the respondent [R-2].
Per Justice Gajendra Singh:
IA No.728/2025 is preferred under section 430(1) of the BNSS,
2023 for suspension of execution of the sentence of sole appellant
Devendra. Appellant Devendra has been convicted under sections 363,
366, 376(2)(n) of the IPC and section 6 r/w section 5(l) of the POCSO
Act, 2012 and has been sentenced for 3 years, 5 years and 20 years RI
and fine with default stipulation vide judgment dated 24.12.2024 in
S.T.No.30/2022 by 2nd Addl. Sessions Judge and Special Judge
(POCSO Act), Mahidpur, district Ujjain.
Appellant Devendra has been convicted and sentenced for
kidnapping and committing penetrative sexual assault towards child
victim (PW/1), aged 16 years 4 months during the period 03.06.2022 to
28.07.2022 and regarding which a crime no.150/2022 was registered at
PS Raghavi, district Ujjain.
This application is preferred on the ground that applicant is a
young boy and he recently got married on 24.11.2024 and wife of the
2 CRA-397-2025
applicant has a right of cohabitation with the applicant/accused.
Prosecutrix (PW/1) has not supported the case of prosecution in any
manner and has been declared hostile. She herself has categorically
stated that she had on her own went along with the applicant and had
stayed with him in different places and also admitted in para-13 of cross
examination that she was major at the time of incident. The trial court
passed the judgment by convicting the applicant merely on the statement
of the interested witnesses who after a plan and strategy implicated the
present appellant falsely. The trial court was wrong in not considering
the material omissions and contradictions in the statement of prosecution
witnesses. There are serious omissions and contradictions in the
statement of the witnesses. The entire prosecution story is doubtful.
There is no iota of material against the appellant for which he has been
convicted. The investigating agency has dealt with the case through
casual investigation.
State has opposed the application by filing reply through
document no.1129/2025 and submitted that age of the prosecutrix has
been proved by cogent evidence and the act of the penetrative sexual
assault has been proved through DNA fingerprint report Ex.P/29. No
case for suspension is made out. It is also submitted that at the time of
judgment the appellant remained absent and his presence was secured
through arrest warrant. It is further submitted that appellant has
undergone a total period of custody of six and half months only. Up to
3 CRA-397-2025
stage of statement under section 164 of Cr.P.C, victim supported the
prosecution.
Counsel for the complainant i.e. father of the victim (PW/1) also
filed objection through IA No.3876/2025 and opposed the suspension of
the sentence. It was argued that the offence under section 366 of IPC is
against the lawful guardian of child.
Counsel for the appellant has relied on Tijubai @ Omvati Bai &
others vs. State of M.P- 2024 MPHC IND 24955, order dated
13.11.2024 in Criminal Appeal No.2146/2020, order dated 14.11.2024
in Criminal Appeal No.5199/2023 at the High Court of M.P, Jabalpur,
order dated 20.11.2024 in Criminal Appeal No.10253/2023, order dated
22.11.2024 in Criminal Appeal No.1126/2024, order dated 18.12.2024
in Criminal Appeal No.6661/2024, order dated 21.01.2025 in Criminal
Appeal No.6631/2024, order dated 22.01.2025 in Criminal Appeal
No.8857/2024 at the High Court of M.P, Indore, order dated 10.02.2025
in Criminal Appeal No.3505/24, order dated 11.02.2025 in Criminal
Appeal no.5333/2022 and order dated 11.02.2025 in Criminal Appeal
No.10559/2022 at the High Court of M.P, Jabalpur.
Perused the record.
The age of the victim (PW/1) has been proved through marksheet
cum certificate examination, 2021 conducted by the Board of Secondary
Examination, MP, Bhopal (Ex.P/7) in which her date of birth is
mentioned as 15.03.2016. This document is at serial no.1 of section 94
4 CRA-397-2025
if the Juvenile Justice (Care and Protection) Act, 2015. The reference of
para-13 of the cross examination of PW/1 or non examination of
headmaster of the concerned school does not render the certificate
Ex.P/27 as fabricated or manipulated as mentioned in Ashwani Kumar
Saxena vs. State of M.P - AIR 2013 SC 553. Ex.P/29 is the DNA report
in which it is opined that Y cromosome STR DNA profile found on the
vaginal slide of the victim matches with the Y cromosome STR DNA
profile obtained from the blood sample of the appellant/accused. In the
case referred by the appellant in Tijubai @ Omvatibai (supra) the
document to prove age was not of certificate of Board of Secondary
Examination. The facts of the other referred cases also are not similar as
either date of birth is not proved through certificate of Board
examination or period of custody was significant or the act was not
proved through scientific evidence of DNA fingerprint report.
Accordingly, we are not inclined to suspend the sentence of the
appellant at present. I.A.No.728/2025 is accordingly rejected.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
