2021 Supreme(Online)(MP) 6759

THE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE BEFORE DIVISION BENCH: JUSTICE VIVEK RUSIA AND JUSTICE SHRI SHAILENDRA SHUKLA

Case No.	:	CRRFC.No.14/2018 & CRA.Nos.7215/2018 and 7269/2018
Parties name	:	State of M.P. v/s. Irfan & Anr. (CRRFC.No.14/2018), Irfan v/s. State of M.P. CRA. No.7215/2018) and Asif vs. State of M.P. (CRA.No.7269/2018).
Date of Judgement	:	09/09/2021
Bench constituted of	:	Hon'ble Justice Shri Vivek Rusia and Hon'ble Justice Shri Shailendra Shukla
Judgement delivered by	:	Hon'ble Justice Shailendra Shukla
Whether approved for reporting	:	Yes
Name of counsels for the parties	:	Shri Pushyamitra Bhargava, learned Addl. Advocate General for appellant/State. Shri Amit Dube and Shri Noor Ahmad Sheikh, learned counsel for respondent/appellant Irfan. Shri Z.A. Khan, learned Senior counsel with Shri R.R. Bhatnagar, learned counsel for respondent/appellant Asif.
Law laid down	:	Held: Conviction and sentence of appellants under Section 376(DB) of IPC – (i) Prosecutrix, a child of seven years of age was proved to have been subjected to violent gang rape by appellants and prosecutrix was also inflicted life threatening injuries. (Significant paragraph nos. – 46 to 51) (ii) Conviction under Section 376(DB) of IPC and sentence of hanging by trial Court – Affirmed – Sentencing Policy Discussed – Legislature has imposed death penalty in incidents of child sexual abuse even though the victim has not died. There is shift in the policy of legislature in view of alarming rise in such cases. (Significant paragraph nos. – 114 to 123, 128 to 141) (iii) Dock identification of prosecutrix

shortly after the incident – is reliable even though TIP not conducted.

(Significant paragraph nos. – 22 to 25)

(iv) Prosecutrix admitted in serious condition in hospital – Identified appellants through photo album containing photographs of appellants along with other persons – looking to the condition of prosecutrix, adopting this mode cannot be considered to be inappropriate.

(Significant paragraph no. – 26)

(v) The mobile of appellants was found to be switched off at the time of incident - is a relevant material under Section 8 of Evidence Act, as had the same not been switched off the location of appellants could have been traced.

(Significant paragraph no. – 76)

(vi) Mobile being sold off by the appellants, moments after the incident – is also a relevant fact against the appellants under Section 8 of Evidence Act.

(Significant paragraph no. – 77)

(vii) Objection by appellants that sentence was pronounced on the same day when they were convicted and thus they were not given opportunity to be heard on the question of sentence – held – it is not statutorily required to postpone the case to a future date for hearing on quantum of sentence.

(Significant paragraph nos. – 135 to 136)

(VIVEK RUSIA) (SHAILENDRA SHUKLA)

JUDGE JUDGE HIGH COURT OF M.P. BENCH AT INDORE Criminal Reference No.14/2018 (State of M.P. vs. Irfan & Ors.)

In Reference (Received from IInd Additional Sessions Judge / Special Judge, POCSO Act Mandsaur, District Mandsaur)

In reference – Versus – Irfan Mevati Criminal Appeal No.7215/2018 Irfan @ Bhayu Mevati – Versus – State of Madhya Pradesh, S/o. Jahir @ Jahid @ Kalu Mevati, Aged 20 years, Caste Musalman, Occupation Labourer.

R/o. - Chandan Ki Gali, Madarpura Mandsaur, Distt. Mandsaur (M.P.)

In reference – Versus – Asif Mevati Criminal Appeal No.7269/2018 Asif Mevati – Versus – State of Madhya Pradesh, S/o.Julfikar Mevati, Aged 24 years, Caste Musalman, Occupation – Centering work.

R/o. - Harijan Basti, Madarpura, Mandsaur, Distt. Mandsaur (M.P.)

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CORAM :

Hon'ble Shri Justice Vivek Rusia, Judge Hon'ble Shri Justice Shailendra Shukla, Judge -----------------------------------------------------------------------------------

Shri Pushyamitra Bhargava, learned Addl. Advocate General for appellant/State.

Shri Amit Dube, learned counsel and Shri Noor Ahmad Sheikh, learned counsel for respondent/appellant Irfan.

Shri Z.A. Khan, learned Senior counsel with Shri R.R. Bhatnagar, learned counsel for respondent/appellant Asif.

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