Rajbahadur Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 7748 MP

                                                                       1                             CRA-9758-2019
                                            The High Court Of Madhya Pradesh
                                                     CRA No. 9758 of 2019
                                                  (RAJBAHADUR KUSHWAHA Vs THE STATE OF MADHYA PRADESH)

                                    14
                                    Jabalpur, Dated : 24-11-2021

                                          Shri Rakesh Dwivedi, Advocate for the appellant.
                                          Shri Atul Dwivedi, Panel Lawyer for the respondent-State.

Record of the court below is available on record.

Appeal is admitted for hearing.

I.A. No. 6137/2021 is filed for taking additional documents on record.

Considering the averments made in the application, the same is allowed.

Office is directed to take the same on record.

Heard on I.A.No.4186/2021, which is third application filed by the accused/appellant, under section 389 (1) of Cr.P.C. for suspension of his jail sentence awarded by the Court of learned Special Judge (under POCSO Act) cum 3rd Addl. Sessions Judge, Sidhi, M.P. in S.T. No. 50/2017 vide its judgment dated 31.10.2019 convicting the appellant/accused for the offence punishable under Section 376 of IPC and sentenced him to undergo RI for 10

years with a fine of Rs. 500/- with default stipulation. Earlier two applications were dismissed on merit on dated 11.02.2020 and 05.09.2020.

As per prosecution case, on dated 20.06.2016, prosecutrix lodged a written complaint before the Women Cell, Sidhi alleging therein that her mother is no more and she is residing with her grandparent. On dated 30.01.2016, when her grandparent had gone in an invitation and she was alone in the house. At that point of time, appellant herein come over there and committed sexual intercourse upon her against her will with the false pretext of marriage. He continuously committed intercourse with the prosecutrix till 15.02.2016, owing to which she became pregnant. It was also alleged that the appellant has threatened to the prosecutrix with the Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.11.30 18:17:48 IST 2 CRA-9758-2019 dire consequences.

Learned counsel for the accused/appellant submits that learned trial C o u r t committed grave error in convicting and sentencing the accused/appellant. He further submits that earlier applications of appellant were dismissed on merit by this Court. At that time, this court did not consider the evidence in regards of consent of prosecutrix in perspective

way. Learned trial Court held that at the time of incident, prosecutrix was above 18 years. Prosecutrix is wholly consenting party in this matter. Prosecutrix (PW-1) admitted this fact that in her statement recorded before the trial Court that appellant used to come to her house and made physical relationship with her. On that time she neither raise any objection nor made any complaint against the appellant. Actually, both parties love each other. There was long cohabitation between both the parties. Father of prosecutrix was not ready to solemnize marriage with appellant-accused. There are material contradictions and omissions in the statement of the witnesses. The appellant/accused is 21 years young boy. He is in jail since 04.02.2017. Jail report of the appellant from District Jail, Sidhi is received in which it is mentioned that appellant has served 5 years 3 months and 7 days of jail sentence out of 10 years. So, he has served more than half of his jail sentence awarded by the trial Court. It is also clear from the jail report, which is received from the District Jail-Sidhi that appellant has served 5 years 3 months and 8 days of jail sentence. There is every possibility to get success in this appeal. This appeal is of year 2019. It will take time for final disposal. 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. 4633/2021. It is opined by Hon'ble the Apex Court that "there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone

Signature Not Verified can be the basis for grant of bail." Under the circumstances, if the execution SAN

Digitally signed by PALLAVI SINHA Date: 2021.11.30 18:17:48 IST 3 CRA-9758-2019 of jail sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail to the present accused/ appellant.

Learned Panel Lawyer has opposed the application. Having considered the arguments advanced by learned counsel for the parties and the facts that prosecutrix is major girl, she admitted this fact in her statement recorded before the trial Court that appellant used to come to her house and made physical relationship with her consent, on that time, she neither raise any objection nor made any complaint against the appellant, he is in jail since 04.02.2017, so, he has served half of his jail sentence awarded by the trial Court, it is also clear from the jail report, which

is received from the District Jail-Sidhi that appellant has served 5 years 3

months and 8 days of jail sentence, this appeal is of the year 2019, so it

will take time for final hearing, therefore, without commenting anything on the merit of the case, I.A. No. 4186/2021 is allowed.

It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant-Rajbahadur 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 17.01.2022 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.

In case, the appellant is found absent on any date fixed by the trial court then the said court shall be free to issue and execute warrant of arrest without referring the matter to this Court, provided the Registry of this Court is kept informed.

List this matter for final hearing in due course, as per listing

Signature Not Verified policy.

  SAN




Digitally signed by PALLAVI SINHA
Date: 2021.11.30 18:17:48 IST
                                                                    4                      CRA-9758-2019
                                              C.C. as per rules.


                                                                       (RAJENDRA KUMAR SRIVASTAVA)
                                                                                  JUDGE

                                    Pallavi




Signature Not Verified
  SAN




Digitally signed by PALLAVI SINHA
Date: 2021.11.30 18:17:48 IST