Rahul vs The State Of Madhya Pradesh
2021 Latest Caselaw 2940 MP

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  HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                         Cr. A. No.6427 of 2019
                         Rahul Vs. State of M.P.

Indore, Dated:- 02/07/2021

      Heard through video conferencing.

      Shri Vivek Singh, Counsel for the appellant - Rahul.

      Shri Ram Shastri, Counsel for the respondent/State.

Heard on IA No.13113/2021, second application under Section

389 (1) of the Code of Criminal Procedure, 1973 for suspension of

jail sentence and grant of bail filed on behalf of the appellant.

The present appellant has been convicted and sentenced by II

Additional Sessions Judge, Sendhawa, District - Barwani (MP) in

Special Sessions Case No.75/2015 vide judgment dated 23.07.2019,

as under: -

         Conviction                        Sentence
   Section       Act          RI          Fine      Imprisonment in
                                         amount       lieu of fine
   376 (2) IPC, 1860       10 years Rs.2,000/-      2 years RI
   (N)
   363        IPC 1860     03 years Rs.200/-        3 months RI
   366        IPC 1860     03 years Rs.200/-        3 months RI
   368        IPC 1860     01 year    Rs.200/-      3 months RI

First application for suspension of jail sentence of the appellant was

dismissed as withdrawn vide order dated 19.10.2020.

Counsel for the appellant has submitted that the prosecutrix (PW-2)

was a consenting party, which is also apparent from her statement recorded

under Section 161 of Cr.P.C. whereas in her statement given before the

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.6427 of 2019 Rahul Vs. State of M.P.

Court she has not supported the case of the prosecution. However, in her

further cross-examination by the prosecution, she has admitted that she was

subjected to rape.

Counsel has further submitted that the prosecutrix (PW-2) has not

denied her statement recorded under Section 161 of Cr.P.C. proved as

Ex.P/11 and 12 and has admitted that the same are also correct.

Counsel has also submitted that the evidence regarding the age of

the prosecutrix is also not sufficient to hold that she is less than 18 years

old as admittedly scholar register of her previous school has not been

placed on record and in fact the scholar register of subsequent school,

namely, Saraswati Shishu Vidya Mandir, Sendhawa has been produced and

PW-4 Bharat Shinde Accountant of School admitted that the prosecutrix

had studied in their school from Class 4 to Class 8.

Counsel has further submitted that even the Investigating Officer

(PW-12) Ramesh Koli has not obtained the scholar register of the

prosecutrix from her earlier school, namely, Swami Vivekanand Vidya

Mandir, Dhanora. Thus, it is submitted that looking to the fact that the

appellant is in jail since 23.07.2019, application for suspension of jail

sentence be allowed.

Counsel for the respondent/State, on the other hand, has opposed the

prayer.

Having considered rival submissions and on perusal of the record

including the evidence adduced by the prosecution in support of the age of

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.6427 of 2019 Rahul Vs. State of M.P.

the prosecutrix as also the statement of the prosecutrix PW-2 as the

statement of PW-4 Bharat Shinde Accountant of School Saraswati Shishu

Vidya Mandir, Sendhawa and the Investigating Officer PW-12 Ramesh

Koli, this Court finds force with the contentions raised by Counsel for the

appellant to allow the application.

Accordingly, without expressing any opinion on merits of the case,

IA No.13113/2021 is allowed and it is directed that on furnishing a

personal bond by the appellant in the sum of Rs.50,000/- (Rupees fifty

thousand only) with a solvent surety in the like amount to the satisfaction

of the learned trial Court, for his / her regular appearance before concerned

trial Court, the execution of the custodial part of the sentence imposed

against the appellant shall remain suspended, till the final disposal of this

appeal.

The appellant, after being enlarged on bail, shall mark his presence

before the concerned trial Court on 12.08.2021 and on all such subsequent

dates, as may be fixed by the concerned Court in this regard.

C. c. as per rules.

(SUBODH ABHYANKAR) JUDGE Pankaj Digitally signed by PANKAJ PANDEY Date: 2021.07.02 16:34:51 +05'30'