Rajesh Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 76 MP

                                  1                              CRA-1732-2020
        The High Court Of Madhya Pradesh
                   CRA-1732-2020
          (RAJESH KUSHWAHA Vs THE STATE OF MADHYA PRADESH AND OTHERS)


Jabalpur, Dated : 23-02-2021
      Shri R.S. Patel, learned counsel for the appellant.

      Shri S.M. Patel, learned P.L. for the respondent No.1-State.

Shri Anurag Prajapati, learned counsel for the respondent No.2. Appeal has already been admitted for final hearing on 08.07.2020. Heard on I.A.No.6988/2020, which is first application for suspension

of execution of jail sentence and grant of bail to the appellant/accused.

Appellant stands convicted for the offences punishable under Section 376 (2) of IPC as well as Section 5/6 of POCSO Act and has been sentenced to undergo RI for 10 years with fine of Rs.3,000/-in each offence. Default stipulations have also been imposed by the trial Court.

As per prosecution case, on 27.02.2017, on the information of seeing dead infant, the police registered a Dehati Nalshi and inquired the matter wherein it is found that the appellant and prosecutrix was in relationship and on account of which, the prosecutrix got pregnant. On 22.01.2017, her

marriage was performed with another person. When the prosecutrix came back to her maternal home, on 26.02.2017, the appellant had given some medicines to abort the child, as a result of which, a dead infant was born who had been thrown by the appellant.

Learned counsel for the appellant submits that the judgment passed by the trial Court is bad in law and deserves to be set aside. He submits that the trial Court has failed to consider the fact that all the important witnesses including prosecutrix and her parents have turned hostile. The learned trial Court erred in disbelieving the aforesaid witnesses. He submits that the trial Court has convicted the appellant only on the basis of prosecutrix being minor and she was subjected to rape relying on the DNA report, but the Court has overlooked the point that prosecutrix and her parents categorically stated that the date of birth was written in the school record are 3 years lesser 2 CRA-1732-2020 than her actual date of birth. They have stated that the prosecutrix admitted in the school when she was 9 years old. With the aforesaid, he submits that the prosecutrix was not minor at the time of incident and if any sexual intercourse was done, same was with consent of prosecutrix. The appellant is in jail since 03.05.2017, therefore, he has served substantial jail period. The appeal is of

year 2020 and will take sufficient time in its conclusion. There is every possibility to get success in the appeal. There is no likelihood of his absconding. Under the circumstances, if the sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of his jail sentence and grant of bail.

Learned counsel for the respondent No.1/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 and the aforesaid offence is also serious in nature. It is further submitted that DNA report is against the present appellant. Therefore, sentence of the appellant should not be suspended.

Learned counsel for the respondent No.2 has no objection if bail is granted to the appellant.

Heard and perused the record.

O n perusal, it is found that the appellant was facing trial for the offences punishable under Sections 376 (2), 312, 313, 315 and 318 of IPC as well as Section 5/6 of POCSO Act and 3(2)(5) of SC/ST Act, but the learned trial Court has not found sufficient evidence to convict the appellant except the offences under Section 376(2) of IPC and Section 5/6 of POCSO Act. However, the prosecutrix and her parents discarded the entire incident, but the corroborating the DNA report, the learned trial Court found that the prosecutrix was minor at the time of incident and she was subjected to rape and thus the Court has not given importance to her consent and passed the sentence. But, on perusal of statements of prosecutrix (PW-1) and her parents (PW-2) & (PW-3), they have categorically stated that the date of birth 3 CRA-1732-2020 mentioned in the school record was lesser than actual date of birth of the prosecutrix. All the aforesaid witnesses have stated that the prosecutrix got admission when she was 9 years old. The prosecution has also examined O.P. Shrivastava (PW-9) who is Headmaster of Government Middle School Chandrapura to prove the date of birth of prosecutrix. He stated in his cross- examination that he is unable to depose on what basis the date of birth was mentioned and stated that generally the date of birth was mentioned according to information given by parents. There is no ossification test has been conducted by the prosecution. The appellant has already suffered about 4 years of jail sentence out of 10 years conviction and the appeal will take sufficient time in its conclusion.

Having considered the arguments advanced by learned counsel for the parties, but without commenting anything on the merit of the case, the said I.A. No.6988/2020 is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant/accused-Rajesh Kushwaha shall remain suspended during the pendency of this appeal and he be released on bail on his furnishing a 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 26.04.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.

I n view of the outbreak of 'Corona Virus disease (COVID-19)' the appellant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020 , it would be appropriate to issue the following direction to the jail authority :-

1. The Jail Authority shall ensure the medical examination of the appellant by the jail doctor before his release.

2. The appellant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

4 CRA-1732-2020 3 . If it is found that the appellant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.

List this matter for final hearing in due course.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

sp Digitally signed by SAVITRI PATEL Date: 2021.02.24 17:44:32 +05'30'