Madhya Pradesh High Court
Ismail Khan vs The State Of Madhya Pradesh on 13 December, 2021
Author: Rajendra Kumar Srivastava
1 CRA-3768-2021
The High Court Of Madhya Pradesh
CRA No. 3768 of 2021
(ISMAIL KHAN Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 13-12-2021
Dr. Shri Anil Pare, Advocate for the appellant.
Shri Rahul Tripathi, Panel Lawyer for the respondent-State.
Record of the Court below is available on record.
Appeal is admitted for hearing .
Heard on I.A. No.11641/2021, which is an application for
suspension of sentence and grant of bail to the appellant-Ismail Khan.
Accused/appellant has been convicted against judgment dated
8.4.2021 passed by learned Special Judge (Atrocities), Tikamgarh,
District Tikamgarh (MP) in Special Case No. 101/2018, by which the
appellant has been convicted for offence under Sections 342 of IPC and
has been sentenced to undergo R.I. for 6 years with fine of Rs.500/-,
Section 366 of IPC, he is sentenced to undergo R.I. for 5 years with fine
of Rs.1,000/- and Section 376 of IPC, appellant has been sentenced to
undergo R.I. for 10 years and fine of Rs.3,000/-, with default
stipulations.
As per prosecution, on 26.7.2018, prosecutrix aged 17 years 11
months was missing from her house. She was searched, but not found.
FIR was lodged. Thereafter, on 29.7.2018, prosecutrix was recovered
nearby bus stand Tikamgarh (MP). It is alleged by her that
accused/appellant and co-accused kidnapped her. Accused/appellant
took her at Tikamgarh. Accused/appellant kept prosecutrix in his house
and committed intercourse with her. On 28.7.2018, prosecutrix ran away
and reached bus stand and informed about all the incident to her parents.
Learned counsel for the appellant-accused submits that learned
trial Court committed grave error to convict and sentence to the
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.12.15 13:14:10 IST
2 CRA-3768-2021
appellant/accused. Learned trial Court did not appreciate the evidence in
perspective way. The evidence of prosecutrix is not wholly reliable.
Learned trial Court already held that prosecution has failed to prove that
at the time of incident, prosecutrix was below 18 years. Learned trial
Court already acquitted other co-accused Qadir and Narayan under
Section 363/34, 366/34 of IPC and Section 3(2)(v) of SC/ST Act of
same evidence. Except the evidence of prosecutrix, no other reliable
evidence is available on record. Prosecutrix went with
accused/appellant on his motorcycle at Tikamgarh. During this period,
she did not cry for help, so it appears that prosecutrix is consenting party
in this matter. Her father admitted this fact that when he reached at
Village, at that time, it came to his knowledge that prosecutrix was with
the accused/appellant, but her father has not lodged named FIR. This fact
shows that prosecutrix is consenting party and father of prosecutrix was
having no knowledge about this. There are material contradictions and
omissions in the evidence of prosecution witnesses. This appeal is of
year 2021. It will take time for final hearing. Accused/appellant is in jail
since 31.7.2018 to till now, so he has served almost 3 years 6 months
jail sentence out of 10 years. There is fair chance to succeed in the
appeal. Under these circumstances, i f the sentence of the
appellant/accused is not suspended, purpose to file this appeal will be
futile. Hence, prayer is made for suspension of execution of jail sentence
and grant of bail to the present accused/appellant.
Learned counsel for the respondent-State opposes the same
submitting that the impugned judgment of conviction and order of
sentence is based on proper appreciation of oral as well as documentary
evidence and the appellant has committed grave offence. Therefore,
sentence of the appellant should not be suspended.
Signature Not Verified
SAN
Hearing arguments of both the parties and the fact that co-accused
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.12.15 13:14:10 IST
3 CRA-3768-2021
Qadir and Narayan have already been acquitted under Section 363/34,
366/34 of IPC and Sec. 3(2)(v) of SC/ST Act on same evidence of
prosecutrix, father of prosecutrix (PW/2) admitted this fact that when he
lodged the report at that time, he has knowledge that prosecutrix was
with accused/appellant, but the name of accused/appellant is not
mentioned in the FIR, accused/appellant in jail since 31.7.2018 to till
now, so he has served almost 3 years 6 months sentence out of 10
years, this appeal is of year 2021, it will take time for final hearing, but
without commenting anything on the merits of the case, I.A.No.
11641/2021 is allowed.
It is ordered that subject to payment of fine amount, if not already
deposited, the execution of jail sentence of accused/appellant-Ismail
Khan shall remain suspended during the pendency of this appeal and he
shall be released on bail on his furnishing personal bond for a sum of
Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety in
the like amount to the satisfaction of the trial Court for his appearance
before the trial Court on 08.03.2022 and thereafter on all other such
subsequent dates, as may be fixed by the trial Court in this regard.
In case, accused/appellant is found absent on any date fixed by the
trial Court then the said Court shall be free to issue and execute warrant
of arrest without referring the matter to this Court, provided the Registry
of this Court is kept informed.
List this matter for final hearing in due course.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.12.15 13:14:10 IST
