Madhya Pradesh High Court
Nageshwar vs The State Of Madhya Pradesh on 12 November, 2021
Author: Sujoy Paul
Cr.A. No. 10845/2019 1
(Nageshwar and others Vs. State of M.P.)
The High Court Of Madhya Pradesh
Indore : 12/11/2021 :-
Shri Deepak Bourasi, learned counsel for the appellant no.2.
Ms. Rukmani Dangar, learned counsel for appellants no.3.
Ms.Mamta Shandilya, learned G.A. for the respondent/State.
Heard on IA No.27821/2021 and I.A.No.27653/2021 which are
second applications filed under Section 389 (1) of Code of Criminal
Procedure, 1973 seeking suspension of sentence filed on behalf of
appellant No.2-Ajay and appellant no.3-Maheshchandra, who have
been convicted by Additional Sessions Judge, Badnavar, District-Dhar
(MP) in Session Trial No.42/2018 vide judgment dated 05.11.2019 and
sentenced them as under:-
Conviction Imprisonment Fine amount Imprisonment in
lieu of fine
454 IPC 2 years RI Rs.2,000/- 2 months RI
376(2)(F) 10 years RI Rs.2,000/- 2 months RI
376-D 20 years RI Rs.1,00,000/- 6 months RI
506(part-II) 2 years RI Rs.1,000/- 1 month RI
Learned counsel for the appellants raised common ground that the
present appellants are similarly situated qua appellant no.1-Nageshwar,
who got the benefit of suspension of sentence by order dated 22.10.2021.
Learned Government Advocate has not opposed the said
contention and fairly submitted that prima facie there appears to be a case
of parity.
This Court vide order dated 22.10.2021 recorded as under:-
"Heard on IA No.3689/2021 which is first application filed under
Section 389 (1) of Code of Criminal Procedure, 1973 seeking
suspension of sentence filed on behalf of appellant No.1-
Nageshwar who has been convicted by Additional Sessions
Judge, Badnavar, District-Dhar (MP) in Session Trial
No.42/2018 vide judgment dated 05.11.2019 and sentenced
him as under:-
Conviction Imprisonment Fine amount Imprisonment in lieu of fine
454 IPC 2 years RI Rs.2,000/- 2 months RI
376(2)(F) 10 years RI Rs.2,000/- 2 months RI
376-D 20 years RI Rs.1,00,000/- 6 months RI
506(part-II) 2 years RI Rs.1,000/- 1 month RI
Signature Not VerifiedDigitally signed by
SAN REENA JOSEPH
Date: 2021.11.12
17:49:46 IST
(Nageshwar and others Vs. State of M.P.)
Learned Senior Counsel for appellant No.1 submits that
appellant has been falsely arraigned and incorrectly convicted
by the court below. The alleged incident of rape had taken place
on 21.5.2018. As per prosecution story, three persons including
the appellant No.1 allegedly sexually assaulted the complainant.
The FIR was lodged on 26.7.2018. There is no plausible and
justifiable reason of inordinate delay in lodging the FIR. The
story of prosecution that videography of incident of rape was
circulated through electronic mode was not found proved by the
court below. Reliance is placed on paragraph Nos.57 and 58 of
the impugned judgment. In addition, by taking this Court to the
cross-examination of prosecutrix (para 14), it is submitted that
till 26.7.2018 when the video was allegedly seen by the
prosecutrix in the mobile phone of her husband, she was
leading a normal life. She had categorically admitted that the
video of incident of rape was not at all circulated by the accused
persons. In this view of the matter it is urged that final hearing of
the appeal will take time and appellant No.1 prima facie is not
guilty of the alleged offence, the remaining jail sentence be
suspended.
Prayer is opposed by learned Dy.A.G..
We have heard the parties and gone through the reply
filed by the respondent/State.
In view of findings given by the court below in
paragraph Nos. 58 and 59 coupled with the statement of
prosecutrix mentioned hereinabove, without commenting upon
merits of the case, we deem it proper to suspend the remaining
jail sentence of appellant No.1-Nageshwar.
Accordingly, IA No.3689/2021 is allowed. The
substantive jail sentence of appellant No.1-Nageshwar is
suspended subject to his depositing the fine amount (if not
already deposited) and on furnishing a personal bond in the
sum of Rs.50,000/-(Rupees Fifty Thousand) with one local
solvent surety in the like amount to the satisfaction of the trial
Court for his appearance before the concerned trial Court on
22.12.2021 and on all other subsequent dates as may be fixed
by the trial court in this behalf."
In view of the said order and principle of parity, the appellant no.2-
Ajay and appellant no.3-Maheshchandra deserves similar treatment.
Accordingly, without commenting upon merits of the case, we deem it
Signature Not VerifiedDigitally signed by proper to suspend the remaining jail sentence of appellant No.2-Ajay
SAN REENA JOSEPH
Date: 2021.11.12
17:49:46 IST
(Nageshwar and others Vs. State of M.P.)
and appellant no.3-Maheshchandra.
Accordingly, I.A.No.27821/2021 and I.A.No.27653/2021 are
allowed. The substantive jail sentence of appellant No.2-Ajay and
appellant no.3-Maheshchandra are suspended subject to their
depositing the fine amount (if not already deposited) and on furnishing a
personal bond in the sum of Rs.50,000/-(Rupees Fifty Thousand) each
with one local solvent surety each in the like amount to the satisfaction of
the trial Court for their appearance before the concerned trial Court on
22.12.2021 and on all other subsequent dates as may be fixed by the trial
court in this behalf.
I.A.No.27821/2021 and I.A.No.27653/2021 stand disposed of.
Certified copy as per Rules.
(Sujoy Paul) (Shailendra Shukla)
Judge Judge
RJ
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN REENA JOSEPH
Date: 2021.11.12
17:49:46 IST
