Chattisgarh High Court
Ashish Gupta vs State Of Chhattisgarh on 7 February, 2023
CRA-423-2022
[1]
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 423 of 2022
Ashish Gupta, S/o Pankaj Gupta, aged about 20 years, Resident of Village Salhepur,
Substation Devkan, Police Station Saja, District Bemetara (Chhattisgarh)
.... Appellant
Versus
State of Chhattisgarh, through the Sub-station Devkan, Station House Saja, District Bemetara
(Chhattisgarh)
.... Respondent
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Shri Justice Radhakishan Agrawal, JJ
07/02/2023 Ms. Sareena Khan, Advocate for the appellant.
Mr. Arfoz Khan, Panel Lawyer for the respondent-State.
None on behalf of victim/victim's father, despite service of notice by the
respondent-State.
In compliance of order of this Court dated 16.11.2022, the respondent-State
has served notice on the victim/victim's father and service report dated 07.12.2022
to that effect has been supplied by learned State counsel today during the course of
hearing.
Same is taken on record.
Heard on IA No.01, which is application filed under Section 389 of Cr.P.C. for
suspension of sentence and grant of bail on behalf of the appellant- Ashish Gupta.
By way of impugned judgment of conviction and order of sentence dated
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25.02.2022, the appellant has been convicted as under:
Conviction Sentence
U/s. 363 of IPC R.I. for 03 years with fine of Rs.500/- and, in default
of payment of fine, additional R.I. for 01 year.
U/s. 376(2)(j)(n) of R.I. for 20 years with fine of Rs.1,000/- and, in
IPC default of payment of fine, additional R.I. for 03
years.
U/s. 376(3) of IPC R.I. for 20 years with fine of Rs.1,000/- and, in
default of payment of fine, additional R.I. for 03
years.
U/s. 506 Part-II of R.I. for 03 years with fine of Rs.500/- and, in default
IPC of payment of fine, additional R.I. for 01 year.
U/s. 04 of POCSO R.I. for 20 years with fine of Rs.1,000/- and, in
Act, 2012 default of payment of fine, additional R.I. for 03
years.
Ms. Sareena Khan, learned counsel appearing for the appellant submits that
the appellant has not committed any offence and he has been falsely implicated.
The appellant has good prima facie case and he hopes to succeed in his appeal.
She submits that there is delay in lodging FIR in the instant case, as the incident
took place on 07.05.2019 and FIR has been lodged on 20.09.2019 and there is no
plausible explanation given for delay in lodging the FIR, as such, the case of the
prosecution is doubtful and smells of concoction. Further, the prosecutrix (PW-03) in
Para-26 & 27 of her cross-examination before the learned trial Court has clearly
stated that the appellant had tried to committed sexual intercourse with her but was
not successful in making sexual intercourse with her, hence, the credibility of her
testimony cannot be relied upon. There are major contradiction and omissions in the
statements of prosecution witnesses. It is also submitted that the medical evidence
i.e. FSL report (Ex.P/22) also does not support the case of the prosecution, as it has
been opined in the FSL report that in the underwear and vaginal slides of the
prosecutrix as well as in the underwear of the accused-appellant, no stains of
human sperm/semen has been found. Learned counsel further submits that the
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appellant is in jail since 21.09.2019 and during the course of trial he was on bail by
order of this Court passed in MCRC No.6518 of 2019 (Ashish Kumar Gupta vs.
State of Chhattigarh), dated 02.12.2019 and had never misused the liberty during
the bail period. There is no possibility of this appeal to be heard finally in near future.
The learned trial Court without appreciating the oral and documentary evidence
available on record convicted the appellant for the aforementioned offences by
recording perverse findings, which is contrary to record, thus, appellant be enlarged
on bail by suspending his jail remaining sentence.
Per-contra, Mr. Afroz Khan, learned State counsel opposed the application and
submits that the appellant had committed rape with minor victim, who was aged
about 13 years 05 months on the date of offence. By taking this Court to the
statement of father of the victim (PW-01) coupled with other evidence, including the
medical evidence available on record, he submits that there is sufficient material
available on record to connect the appellant-accused with the offences and the
learned trial Court has rightly convicted the appellant for the offences
aforementioned and, therefore, the present application deserves to be rejected.
We have heard learned counsel for the parties on the application for
suspension of sentence and grant of bail, considered their rival submissions and
went through the record with utmost circumspection.
Taking into consideration the material available on record particularly the fact
that there is inordinate delay in lodging FIR and there is no plausible explanation
offered with regard to the same and further taking into consideration the statement
of the victim/ prosecutrix (PW-03), whereby in Para-26 & 27 of her cross-
examination before the learned trial Court she has clearly stated that the appellant
had tried to committed sexual intercourse with her but was not successful in
developing sexual intercourse with her coupled with the medical evidence i.e. the
FSL report (Ex.P/22), wherein it has been opined that no stains of human
sperm/semen have been found on the underwear and vaginal slides of the victim as
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also on the underwear of the appellant and hearing of this appeal would take
prolonged period of time and during trial the appellant was on bail and had never
misused the liberty, we deem it appropriate to allow the application for suspension of
sentence and grant of bail moved on behalf of appellants.
Accordingly, the substantive jail sentence awarded to the appellant-Ashish
Gupta by the learned trial Court is hereby suspended. The appellant be released on
bail on his executing bail bonds of Rs.25,000/- (Twenty Five Thousand Only) with
one surety in the like amount to the satisfaction of the concerned trial Court for his
appearance before the Registry of this Court on 02.05.2022. He shall thereafter
appear before the concerned trial Court on a date to be given by the Registry of this
Court and shall continue to appear there on all such subsequent dates as are given
to him by the said Court, interval being not less than 6 months, till final disposal of
this appeal.
Consequently, I.A. No.01 is allowed. It is made clear that the observations
made hereinabove are only confined for disposal of IA No.01 and it shall not be
construed as an expression of opinion of this Court on the merits of the matter.
C.C. as per rules.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
[email protected]
