Raj @ Ashutosh vs The State Of Madhya Pradesh
2021 Latest Caselaw 8507 MP

                                                                         1                                CRA-1402-2017
                                               The High Court Of Madhya Pradesh
                                                        CRA No. 1402 of 2017
                                                        (RAJ @ ASHUTOSH Vs THE STATE OF MADHYA PRADESH)


                                       Jabalpur, Dated : 09-12-2021
                                             Shri S.P. Shrivastava, learned counsel for the appellant.

                                             Shri Teeka Ram Kurmi, learned P.L. for the respondent/State.

Heard on I.A. No.20402/2021, which is sixth application for suspension of sentence and grant of bail to the appellant-Raj @ Ashutosh.

The appeal has been preferred under Section 374(2) of the

Cr.P.C.,1973 b y the appellant/accused against judgment dated 03.04.20217 passed by learned 1st ASJ, Waraseoni, Distt.-Balaghat, (M.P.) in Session Trial No.84/2012, by which the appellant has been convicted for offence punishable under Section 376 (2)(G) of IPC and has been sentenced to undergo R.I. for 10 years with a fine of Rs. 15,000/- and Section 67 of IT Act and has been sentenced to undergo R.I. for 3 years with fine of Rs.1,00,000/- with default stipulation in each section.

Prosecution case, in short, is that on 21.01.2012, prosecutrix (PW-2), lodged the report. It is alleged by her that she is familiar with co accused

Harish for one year and six months. On 05.12.2011, co-accused Harish called her at Ambamai, she reached there. Thereafter, co-accused Harish committed intercourse with her. Meanwhile, appellant/accused and other co-accused reached there. Co-accused Vijay also committed intercourse with her. Appellant/accused and other co-accused persons were sitting in surrounding of the prosecutrix. Appellant/accused prepared video clipping of prosecutix while, she was subjected to rape by co-accused Vijay. Thereafter, appellant/accused circulated the said video among the society.

Learned counsel for the appellant/accused submits that although previous application under Section 389 of Cr.P.C. has been rejected on merits but execution of jail sentence of co-accused persons Vijay who committed intercourse with prosecutrix, Rammu and Deepak have already been suspended and granted bail. There are so many contradictions and Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.12.16 11:46:28 IST 2 CRA-1402-2017 omissions in the evidence of prosecution witness. Appellant/accused did not touch the prosecutrix in this incident. Appellant/accused is in custody since 03.04.2017 till now. During trial, he remained in jail from 21.01.2012 to 12.06.2012. So, he has served actual half sentence out of 10 years jail sentence. This appeal is of the year 2017. There are fair chances to succeed

in the appeal. Final hearing of this appeal will take time. In support of his contention, learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Saudan Singh Vs. State of Uttar Pradesh in Special Leave to Appeal (Crl.) No. 4633/2021. It is opined by the Hon'ble Apex Court that "there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail." Under the circumstances, if the execution of jail sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail to the present accused/ appellant.

Learned P.L. for the respondent/State has opposed the application. Hearing argument of both the parties and this fact that execution of jail sentence of co-accused persons Vijay who committed intercourse with prosecutrix, Rammu and Deepak have already been suspended and granted bail, appellant/accused is in custody since 03.04.2017 till now, during trial, he remained in jail from 21.01.2012 to 12.06.2012. So, he has served actual half sentence i.e. 5 years and 1 month out of 10 years jail sentence, this appeal is of the year 2017, final hearing of this appeal will take time, but without expressing any opinion on the merits of the case, I am o f the considered opinion that it would be appropriate to suspend the execution of jail sentence awarded to the appellant and grant bail to him.

Consequently, I.A. No.20402/2021 is allowed subject to deposit of fine amount, if not already deposited. The custodial sentence awarded to the

Signature Not Verified appellant shall remain suspended during the pendency of this appeal.

SAN

Digitally signed by LALIT SINGH RANA Date: 2021.12.16 11:46:28 IST 3 CRA-1402-2017 Appellant-Raj @ Ashutosh be released from custody subject to his furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only), with one surety in the like amount, to the satisfaction of the trial Court. The appellant shall appear and mark his presence before the trial Court on 28.02.2022 and shall continue to do so on all such future dates, as may be given by the trial Court in this behalf, during pendency of the matter.

List the matter for final hearing in due course.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

L.R.

Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.12.16 11:46:28 IST