Madhya Pradesh High Court
Raghuvir Singh Kushwah vs The State Of Madhya Pradesh on 17 December, 2021
Author: Rajeev Kumar Shrivastava
1
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.6918/2019
(Raghuvir Singh Kushwah & anr. vs. State of M.P.)
Gwalior, Dated :17.12.2021
Shri J.P. Mishra, learned counsel for the appellants.
Smt. Padamshree Agarwal, learned Panel Lawyer for the
respondent/State.
Heard on I.A. No.14079/2020 and IA.No.8379/2021. These are
second applications for suspension of sentence under Section 389(1)
Cr.P.C. filed on behalf of appellant No.1 Raghuvir Singh Kushwah and
appellant No.2-Rambaran Kushwah.
Both the appellants have been convicted under Section 376-D of
IPC and sentenced for life imprisonment with fine of Rs.20,000/- with
default stipulation vide judgment dated 25.07.2019 passed in Special
Sessions Trial No.13/2017 by the Special Judge (POCSO Act), District
Morena.
Both the appellants have already deposited the fine amount
awarded against them and they are in jail incarceration since last 4
years and 10 months. Earlier application filed on behalf of appellant
No.1 for grant of interim suspension was considered by this Court vide
its order dated 21.05.2020 and 4.5.2021 and in compliance of
aforesaid order, after completion of interim bail period, the appellant
surrendered on 15.05.2021.
Earlier application filed on behalf of appellant No.2 for grant of
interim suspension was considered by this Court and thereafter, he
surrendered himself before the concerned Magistrate on 20.01.2021.
It is further submitted that as per prosecution story, on
24.02.2017 prosecutrix made a written complaint to Police Station
Sumaoli, District Morena alleging therein that on 8.2.2017 at around
10.00 AM when prosecutrix had gone to the farm of Indarjeet for
attending the call of nature, appellants reached there and appellant
No.1 hold the prosecutrix from behind and threw her on the floor in
order to outrage her modesty. Thereafter, appellant No.1 removed her
clothes and appellant No.2 caught hold of hands. On the basis of that,
FIR got registered at Crime No.24/2015 in Police Station Sumaoli,
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.6918/2019
(Raghuvir Singh Kushwah & anr. vs. State of M.P.)
District Morena for the offences punishable under Section 354 of IPC
and 7/8 of POCSO Act. Thereafter, on 25.02.2019, the statement of
prosecutrix was recorded under Section 164 of Cr.P.C. wherein first
time prosecutrix levelled the allegations of rape on the appellants,
therefore, offence under Section 376 of IPC and ¾ of POCSO Act was
enhanced. Prosecution has utterly failed to explain the inordinate delay
in filing the FIR, which has been made the prosecution story
suspicious. The only reason explained for inordinate delay is that the
police was not registering the FIR but no any documentary evidence
has been produced with regard to non-registration of FIR in time. The
written complaint filed before the police authorities which is Ex-P/1
on the basis of which, FIR got registered for the offence under Section
354 of IPC and Section 7/8 of POCSO Act and primarily, did not level
any allegation of rape against the appellants and due to previous
enmity, the appellants have falsely been implicated in this case. The
samples for FSL testing were collected after 15 days of the incident
and no sample was collected for DNA test, therefore, the FSL report is
also suspicious. Prosecutrix (PW/1) has also admitted in her cross-
examination the fact of previous enmity. Accordingly, observation has
also been made in para 46 of the judgment by the trial Court in this
regard. As initially, the case was registered only under Section 354 of
IPC along with 3/4 of the POCSO Act and thereafter, delay of over 15
days has been caused and Section 376 of IPC has been enhanced. The
appellants are in custody since last 4 years and 10 months. Appeal is
of the year 2019 and there is likelihood of the appeal being not
decided in the near future. On these grounds, learned counsel prays
that execution of the jail sentence of present appellants may be
suspended and they may be enlarged on bail.
The prayer is opposed by learned Panel Lawyer for the
respondent/State.
Taking into consideration the aforesaid facts and circumstances
of the case and the fact that the disposal of appeal will likely to take
THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.6918/2019
(Raghuvir Singh Kushwah & anr. vs. State of M.P.)
long time, but without expressing any opinion on merits of the case,
the applications (IA.No.14079/2020 and I.A. No.8379/2021) are
hereby allowed. It is directed that execution of jail sentence of
appellant No.1 Raghuvir Singh Kushwah and appellant No.2-
Rambaran Kushwah shall remain suspended and they be released
enlarged on bail subject to furnishing personal bond in the sum of
Rs.1,00,000/- (Rupees One Lac only) each with one solvent surety
each in the like amount to the satisfaction of the learned Trial Court
and also subject to deposit of the fine amount (if not already
deposited) for appearance before the Registry of this Court on
07.03.2022 and on further dates as may be directed by the Registry in
that regard.
Accordingly, IA.No.14079/2020 and I.A. No.8379/2021 stand
disposed of.
CC as per rules.
(Rohit Arya) (Rajeev Kumar Shrivastava)
Judge Judge
van
VANDANA VERMA
2021.12.20
10:26:38 -08'00'
