Madhya Pradesh High Court
Nirmal Barkade vs The State Of Madhya Pradesh on 10 March, 2025
1 CRA-1854-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 1854 of 2022
(NIRMAL BARKADE Vs THE STATE OF MADHYA PRADESH )
Dated : 10-03-2025
Ms. Renu Gupta - Advocate for appellant.
Shri K.S. Baghel - Govt. Adv. for the State.
Heard on I.A. No. 25626 of 2024, which is second application for
suspension of sentence and grant of bail at the instance of sole appellant
Nirmal Barkade arising out of judgment dated 24.01.2022 delivered in SC
No.27/2019 by Additional Sessions Judge, Special Judge Protection of
Children from Sexual Offences Act, 2012.
The appellant has been convicted under Sections 363 (for elder
prosecutrix) of the I.P.C. and sentenced to undergo one year R.I. with fine of
Rs.100/-, Section 363 (for younger prosecutrix) of the IPC and sentenced to
undergo one year R.I. with fine of Rs.100/-, Section 376(2)(N) (for elder
prosecutrix) of the IPC and sentenced to undergo ten years R.I. with fine of
Rs.100/- and section 376(3) (for younger prosecutrix) of the IPC and
sentenced to undergo 20 years R.I. with fine of Rs.100/- along with default
stipulations.
It is contended that first application has been rejected on 07.03.2024.
The appellant has spent five years and nine months of actual jail custody as
on date and he is custody continuously since 04.06.2019.
Learned counsel for the appellant though admits that earlier bail
application of same appellant has been rejected on merits on 07.03.2024 but
2 CRA-1854-2022
since there is lapse of year and also that certain aspects could not be argued
at that time and looking to those aspects, the appellant deserves to be
enlarged on bail by suspending his remaining jail sentence.
By taking this Court to the prosecution version, it is argued by learned
counsel for appellant that prosecution case is that there are two victims. Elder
girl accompanied by her younger sister is stated to have went away with the
appellant on 28.05.2019 till they were recovered after four days. It is alleged
that the appellant sexually assaulted the elder victim during the aforesaid
period for about four days and the younger victim though was not sexually
assaulted by him during aforesaid period but in respect of younger victim, he
committed offence in terms of Section 363 of the IPC at that time and after
recovery, younger prosecutrix stated that the appellant had sexually exploited
the younger victim about one month prior when she was alone in her house
along with her grandfather and the appellant had taken away younger victim
and sexually assaulted her but she did not make any report of that fact at that
time. It is argued that so far as the elder victim is concerned, there is
categorical finding of the trial Court in para 62 of the judgment under
challenge that it is a case of consent and also that both the victims went away
with the appellant out of their own will and volition and there was nothing
forcible in said act. Even the sexual assault with elder victim is held by the
trial Court to be with consent, however only on the question of age, the
appellant has been convicted under POCSO Act because the elder
prosecutrix was stated to be 17 years and 6 months old at the time of incident
and younger prosecutrix was younger than that. It is contended that elder
3 CRA-1854-2022
prosecutrix in her Court statement has admitted that she has been tutored to
state the date of birth in a particular manner by the Police and by her family
members and in that regard, para 12 of deposition of elder prosecutrix was
referred and also that it is already held by the trial Court that it was a case of
consent. The determination of age of elder prosecutrix, therefore is
debatable. So far as the matching of DNA with the younger prosecutrix is
concerned, it is contended that act with the younger prosecutrix is stated to
have taken place more than one month prior to the medical examination and
firstly, DNA matching so far as has taken place with the undergarments of
the younger prosecutrix is concerned, that is on a debatable note and that has
been doubted by the trial Court itself. Looking to the position that once a
cloth has been washed many times for the past more than one month,
matching of DNA in such a circumstance is highly doubtful, which has been
recorded in the para 87 of the judgment of trial Court. It is contended that
this aspect escaped attention of this Court while rejection of earlier bail
application. By taking this Court to the DNA report, it is stated that DNA
Scientist has only expressed the possibility of presence of DNA of appellant
in the undergarments of younger prosecutrix because it is not a perfect match
and DNA scientist was not produced for cross-examination by the
prosecution, once it was not a case of perfect match. It is contended that the
appellant has already spent almost five years and nine months in custody.
Per contra, learned Government Advocate for the State has
vehemently opposed the application for suspension of sentence and grant of
bail on the basis of objection. It is also submitted that the victim has been
4 CRA-1854-2022
informed.
Considering the aforesaid and bleak chances of final hearing of this
appeal in near future, without expressing any conclusive opinion on the
merits of the case, we deem it proper to suspend the remaining jail sentence
of appellant.
Accordingly, I.A. No. 25626 of 2024 , is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of this appellant is hereby suspended and it is
directed that appellant Nirmal Barkade be released on bail on his furnishing
personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with
one solvent surety of the like amount to the satisfaction of the trial Court
with a further direction to appear before the concerned trial Court, firstly on
15.05.2024 and also on such further dates as may be fixed by the concerned
trial Court in this regard during the pendency of this appeal.
Certified copy as per rules.
(VIVEK JAIN) (ASHISH SHROTI)
JUDGE JUDGE
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