Madhya Pradesh High Court
Rakesh Kushwaha vs The State Of Madhya Pradesh on 16 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-3290-2018
The High Court Of Madhya Pradesh
CRA-3290-2018
(RAKESH KUSHWAHA Vs THE STATE OF MADHYA PRADESH)
20
Jabalpur, Dated : 16-09-2021
Heard through Video Conferencing.
Shri K.K. Kushwaha, Advocate for the appellant.
Shri Anuj Singh, Panel Lawyer for the respondent-State.
Record of the trial Court has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Also heard on I.A. No.8330/2021 a n application (third) for
suspension of execution of sentence awarded to the appellant and grant of
bail. The first and second applications are respectively dismissed as
withdrawn vide orders dated 17.09.2018 and 31.10.2019.
The appeal has been preferred under Section 374(2) of the Cr.P.C.,
1973 by the appellant/accused against judgment dated 22.03.2018 in S.T.
No. 98/2015 passed by learned Sessions Judge, Nagod, Distt.-Satna
(M.P.), the appellant has been convicted for the offence punishable under
Section 363 of IPC and has been sentenced to undergo R.I. for 2 years
with a fine of Rs. 1,000/-, Section 366 of I.P.C. and has been sentenced
to undergo R.I. for 3 years with a fine of Rs.2,000/-, Section 364(ka) of
IPC and has been sentenced to undergo R.I. for 7 years with a fine of Rs.
3,000/-, Section 365 of IPC and has been sentenced to undergo R.I. for 2
years with a fine of Rs. 1,000/-, Section 328 of IPC and has been
sentenced to undergo R.I. for 7 years with a fine of Rs. 3,000/-, Section
120-B of IPC and has been sentenced to undergo R.I. for 2 years with a
fine of Rs. 1,000/- and Section 5 & 6 of IPC and has been sentenced to
undergo R.I. for 10 years with a fine of Rs. 10,000/- with default
stipulation in each.
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.09.16 18:03:47 IST
2 CRA-3290-2018
As per prosecution case, on dated 16.03.2015, prosecutrix aged 16
years was missing from her house. She was searched but not found. FIR was
lodged. On dated 11.04.2015, prosecutrix was recovered from the
possession of present appellant-accused. It is alleged by the prosecution that
appellant-accused kidnapped and took her with him. Thereafter, appellant-
accused kept prosecutrix in a house and committed intercourse with her. It is
further alleged by the prosecution that appellant-accused gave some
intoxicated substance to prosecutrix due to which she became unconscious.
Thereafter, appellant-accused took her in his house and detained her there
and committed intercourse with her.
Learned counsel for the appellant submits that appellant/accused
has falsely been implicated in this case. Actually, at the time of incident,
prosecutrix was above 18 years old. Appellant-accused is also 22 years
old. Both loved each other but parents of prosecutrix were not ready to
accept their relation so prosecutrix voluntarily came to the appellant-
accused. Thereafter, they ran away. It is not proved that at the time of
incident, prosecutrix was below 18 years. Although prosecution
produced Gayadeen Verma PW-5 and Ramsiromani Shukla PW-10 who
are the Principals of Saraswat Shishu Mandi High Court Rahikwara
Vikas khad Nagod, Disst.-Satna, where prosecutrix was studying. They
deposed before the trial Court that the date of birth of prosecutrix in the
school register is mentioned as 07.09.1999 but it is not proved what is
the source of information of date of birth of prosecutrix so prosecutrix
might be above 18 years old at the time of incident. Prosecutrix is
consenting party in this case. Prosecutrix lived with appellant-accused
about one month. She did not raise any objection in this period. When the
family members reached the place where appellant-accused and
prosecutrix were residing then she was pressurized to give false
Signature Not Verified
statement against the appellant-accused. There are material
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.09.16 18:03:47 IST
3 CRA-3290-2018
contradictions and omissions in the evidence of the prosecution
witnesses. Appellant/accused is in custody since 04.05.2015 so he has
served more than 6 years of jail sentence out of 10 years. This appeal is
o f the year 2018. It is the time of COVID-19 pandemic, due to which
final hearing of this appeal will take time. There is every possibility to
succeed in this appeal. Under these circumstances, if the execution 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 appellant-accused.
On the other hand, learned Panel Lawyer for the respondent-State
opposes the submission of appellant's counsel and prays for its rejection.
Heard and perused the record.
Having considered the arguments advanced by learned counsel for
the parties and this fact that the age of prosecutrix is disputed, appellant-
accused is in jail since 04.05.2015, so he has served more than 6 year of
jail sentence out of 10 years sentence, this appeal is of the year 2018, it
is the time of pandemic COVID-19, due to which final hearing of this
appeal will take time but without commenting anything on the merits of
the case, the said I.A. is allowed.
It is ordered that subject to payment of fine amount, if not already
deposited, the execution of jail sentence of the appellant-Rakesh
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 same like amount to the satisfaction of the trial Court for his
appearance before the learned trial Court on 22.11.2021 and thereafter
on all other such subsequent dates, as may be fixed by the trial Court in
this regard.
Signature Not Verified
SAN
In case, the appellant is found absent on any date fixed by the trial
Digitally signed by PALLAVI SINHA
Date: 2021.09.16 18:03:47 IST
4 CRA-3290-2018
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.
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.
3 . If it is found that the appellant is suffering from 'Corona
Vi r u s 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, as per listing policy.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
Pallavi
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.09.16 18:03:47 IST
