Madhya Pradesh High Court
Gendalal vs The State Of Madhya Pradesh on 20 April, 2022
Author: Satyendra Kumar Singh
1 Cr.A.No.1223/2015
(Gendalal Vs. State of M.P.)
Indore : Dated 20.4.2022
Shri Palash Choudhary, learned counsel for the appellant.
Shri Mukesh Sharma, learned Govt.Advocate for the
respondent/State.
Heard on I.A.No.5793/2019, which is third application under
Section 389(1) of Cr.P.C. for suspension of sentence.
The trial Court has convicted the appellant under Section 376(2)
(1)(N) of IPC and sentenced to undergo ten years' RI with fine of
Rs.5,000/- and under Section 5(L)/6 of the Protection of Children from
Sexual Offences Act and sentenced to undergo ten years' RI with fine of
Rs.5,000/-, with default stipulation, vide judgment of conviction and
order of sentence dated 12.8.2015 passed by Sessions Judge/Special
Judge (POCSO Act), Ratlam, District Ratlam in S.T.No.29/2015.
Prosecution case, in brief, is that appellant took minor prosecutrix
aged about 12-13 years from her house and committed rape upon her
repeatedly.
Learned counsel for the appellant submits that appellant's first
and second applications filed under Section 389(1) of Cr.P.C.for
suspension of sentence were dismissed as withdrawn vide order dated
14.12.2015 and 2.9.2016 respectively with liberty to renew his prayer
at an appropriate stage. Learned counsel for the appellant further
submits that as per jail report dated 4.4.2022 appellant has suffered
about seven years eight days actual period of custody out of total
(Gendalal Vs. State of M.P.)
sentence of ten years awarded to him, which is more than 50% of the
total sentence. Prosecution has failed to prove the fact that prosecutrix
was minor at the time of incident as there is nothing on record except
scholar register entry about age of the prosecutrix. No one has stated
about the fact that on what basis prosecutrix's date of birth was written
as 25.6.2004 in the aforesaid scholar register. Due to prior enmity
appellant has been falsely implicated. He has suffered about seven
years eleven months eight days imprisonment including period of
remission out of ten years' sentence awarded to him. There is no
likelihood of early conclusion of the trial. Therefore, in the aforesaid
circumstances prays for suspension of sentence and enlargement of
appellant on bail, on such terms and conditions this Court deems fit
and proper.
Per contra, learned Govt.Advocate opposes the prayer for
suspension of sentence and submits that the trial Court has rightly
convicted the appellant.
Heard learned counsel for both parties and perused the record.
The Hon'ble Supreme Court in a judgment reported in (1994) 6
SCC 731 (Supreme Court Legal Aid Committee Representing Under
Trial Prisoners Vs. Union of India and others) and affirmed in
Criminal Appeal No.1640 of 2010 (Thana Singh Vs. Central Bureau
of Narcotics) decided on 30.8.2010 has held that if the period of
custody has been undergone by the accused for more than 50% of the
(Gendalal Vs. State of M.P.)
sentence that is awarded, the same should be considered as a ground
while considering the application for bail. In the instant case, since the
appellant has already undergone eight years eleven months eight days
actual period out of total sentence awarded to him, there is no
likelihood of early hearing of the appeal, therefore, considering the
material pointed out by learned counsel for the appellant as well as
overall facts and circumstances of the case, but without commenting
on merits of the case application is allowed.
It is directed that subject to depositing the fine amount, if already
not deposited, appellant shall be released on bail, on furnishing personal
bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) along
with solvent surety in the like amount to the satisfaction of trial Court, for
his appearance before the Registry of this Court firstly on 13.06.2022,
and on such other dates, as may be fixed by the Registry in this regard,
till final disposal of this appeal.
I.A.No.6217/2020 is allowed.
List in due course.
C.C. as per rules.
(Satyendra Kumar Singh)
Judge
Patil
Digitally signed by
SHAILESH PATIL
Date: 2022.04.21
14:45:11 +05'30'
