Madhya Pradesh High Court
Rambabu Gurjar @ Guddya vs The State Of Madhya Pradesh on 23 November, 2021
Author: Rajendra Kumar Srivastava
1 CRA-1460-2016
The High Court Of Madhya Pradesh
CRA No. 1460 of 2016
(RAMBABU GURJAR @ GUDDYA AND OTHERS Vs THE STATE OF MADHYA PRADESH)
31
Jabalpur, Dated : 23-11-2021
Shri Ashish Sinha, Advocate for the appellant No.1.
Shri Harsh Gupta, P.L. for the respondent-State.
Record of the trial Court is available.
Heard on the question of admission.
Appeal is admitted for final hearing.
Also, heard on I.A.No.5752/2021, which is fifth application for
suspension of sentence and grant of bail to the appellant No.1. The details of
earlier applications are as follows:-
1. 1st - dismissed as withdrawn on dated 03.10.2016.
2. 2nd - dismissed on merit on dated 08.12.2017.
3. 3rd - dismissed as withdrawn on dated 03.12.2019
4. 4th - dismissed on merit on dated 09.10.2020.
The appeal has been preferred by the appellant No.1 against judgment
dated 01.04.2016 passed by learned Sessions Judge, Sehore, M.P. in S.T.
No. 113/2015.
Appellant No.1 stands convicted for the offence punishable under
Section 363 of IPC and has been sentenced to undergo R.I. for 5 years with a
fine of Rs. 1000/- with default stipulation, Section 366 of IPC and has been
sentenced to undergo R.I. for 7 years with a fine of Rs. 3000/- with default
stipulation and Section 376(2) jha of IPC and has been sentenced to undergo
R.I. for 10 years with a fine of Rs. 5000/- with default stipulation.
As per prosecution case, on dated 26.08.2015, prosecutrix about 16
years was missing from her house. She was searched but not found.
Thereafter, prosecutrix was recovered on dated 13.09.2015 from the
possession of the present appellant-accused. It is alleged by the prosecution
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SAN
that appellant-accused and co-accused kidnapped to the prosecutrix
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thereafter, appellant-accused took her to Bhopal and committed intercourse
with her.
Learned counsel for the appellant-accused submits that the appellant-
accused has been falsely implicated in this case. Learned trial Court has
committed grave error to convict and sentence to the appellant-accused. It is
not proved that at the time of incident, prosecutrix was below 18 years.
Although this Court on dated 08.12.2017 and 09.10.2020 dismissed the
application of the appellant No.1 on merit for suspension of sentence and
grant of bail but this Court did not consider the evidence in regards of the age
of the prosecutrix. Raghuveer Singh Ujla PW-8 ( Principal) deposed before
the trial Court that the date of birth of prosecutrix is 11.11.1999 but he
admitted this fact that at the time of admisssion of prosecutrix in the school,
he was not posted in the school. He has no knowledge about the source of
information of date of birth of prosecutrix. PW-2 is father of prosecutrix. He
admitted this fact that at the time of admission of prosecutrix in the school, he
disclosed the date of birth on the estimation basis. So, the date of birth of
prosecutrix is not proved. The age of prosecutrix is determined in ossification
test conducted by Dr. Nitin Patel (PW-9), who determined the age of
prosecutrix in between 16-18 years. So, the age of prosecutrix may be above
18 years at the time of incident. It appears from the statement of prosecutrix
that she is a consenting party in the whole incident. She voluntarily went with
appellant-accused at some places. There are material contradictions and
omissions in the evidence of witnesses. Appellant-accused is in jail since
14.09.2015. So, he has served almost 8 years one month of jail sentence out
of awarded jail sentence of 10 years according to the remission report
obtained from the District Jail-Sehore. In support of his contention, learned
counsel for the appellant has relied upon the judgment passed by the Hon'ble
Supreme Court in the case of Saudan Singh Vs. State of Uttar Pradesh in
Special Leave to Appeal (Crl.) No. 4633/202. It is opined by Hon'ble the
Apex Court that "there may be even convicts in custody in cases other than
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life sentence cases and in those cases again the broad parameter of 50 per
cent of the actual sentence undergone can be the basis for grant of bail."
This appeal is of year 2016. Conclusion of its trial will take time to conclude.
There is no probability of his absconding or tampering with the prosecution
evidence. If the appellant is no t released on bail, the purpose of filing this
appeal will be futile. With the aforesaid submissions, learned counsel for the
appellant prays for allowing this application and grant bail to him.
O n the other hand, learned counsel for the respondent-State opposes
the prayer and submits that the learned trial Court has rightly convicted the
appellant. Therefore, he prays for dismissal of this application.
Having considered the arguments advanced by learned counsel for the
parties and on perusal of the record, it is found that the age of prosecutrix is
disputed, appellant-accused has served almost 8 years 1 month of jail
sentence out of 10 years, this appeal is of year 2016, conclusion of trial will
take time, there is no probability of his absconding or tampering with the
prosecution evidence, final hearing of this appeal will take time, but without
commenting anything on the merit of the c as e, I.A.No.5752/2021 is
allowed.
It is ordered that subject to payment of fine amount, if not already
deposited, the execution of jail sentence of appellant No.1-Rambabu
Gurjar @ Guddya shall remain suspended during the pendency of this
appeal and he be released on bail on his furnishing a personal bond for a sum
o f Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety in
the like amount to the satisfaction of the concerned trial Court for his
appearance before the trial Court on 17.01.2022 and thereafter on all other
such subsequent dates, as may be fixed by the trial court in this regard.
List this matter for final hearing in due course.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
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SAN JUDGE
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4 CRA-1460-2016
Pallavi
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SAN
Digitally signed by PALLAVI SINHA
Date: 2021.11.30 18:17:44 IST
