Madhya Pradesh High Court
Shilendra Vishwakarma vs The State Of Madhya Pradesh on 29 April, 2022
Author: Vivek Rusia
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CRA No. 1871/2020
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
BEFORE DIVISION BENCH OF HON'BLE SHRI JUSTICE VIVEK
RUSIA & HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
CRA No. 1871 of 2020
(Shailendra Vishwakarma V/s. State of M.P.)
Date: 29.04.2022 :
Shri N.K. Verma, learned counsel for the appellant.
Shri Kamal Kumar Tiwari, learned Govt. Advocate for
respondent/State.
Heard on I.A. No.29702/2021, first application u/s. 389(1) of
the Cr.P.C. for suspension of the jail sentence on behalf of the
appellant. The appellant stands convicted vide judgment dated
28.1.2020 passed by Additional Sessions Judge, Badnawar, District
Dhar in S.T. No.500146/2016 as under :
Section & Act. Imprisonment Fine Amount Imprisonment in
lieu of default of
payment of fine.
376(2)(J) of the Life 25,000/- One years
IPC. Imprisonment. additional RI.
328 of the IPC. 10 years' RI 5,000/- Six months
additional RI.
66-D of the 3 years' RI. 5,000/- Six months
Information additional RI.
Technology Act.
66-A of the 3 years' RI. 5,000/- Six months
Information additional RI.
Technology Act.
As per prosecution story, the prosecutrix aged about 22 years
developed friendship with the present appellant through Facebook. He
called her to Badnawar and they met at Badi Choupati. Both of them
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CRA No. 1871/2020
consumed juice and thereafter appellant took her to Narmada Lodge.
According to the prosecutrix she was given some intoxicating
substance along with the juice by the appellant due to which she
became unconscious. Thereafter, appellant has committed rape upon
her, took her photographs and uploaded in the Facebook and Whatsap
on 24.5.2016 and 25.5.2016. The appellant sent the said photographs
on mobile of her brother on Whatsap. Accordingly, the FIR was
lodged against the appellant at Police Station Badnagar which was
registered at Crime No.307/2016 u/s.292(2), 328, 376(D) of the IPC
and u/s. 66(D) and Section 67 of the Information Technology Act. The
prosecutrix was sent for medical examination, photographs from
Facebook and Whatsap were taken from the mobile of brother of the
prosecutrix, entry made in the Booking Register of the Lodge was
obtained to confirm the presence of appellant and the prosecutrix in
the Lodge. After collecting all these evidence, charge-sheet was filed
on 16.8.2016 and the trial was committed to the Court of Sessions.
After evaluating the evidence came on record, learned Addl. Sessions
Judge has acquitted from the charge u/s. 376(D), but convicted him for
the offences as stated first. Hence the present appeal before this Court.
Learned counsel for the appellant submits that the appellant has
falsely been implicated in this case. The prosecutrix was a consenting
party to the aforesaid act. There is no medical evidence to establish
that any intoxicating material was given to her before indulging her
into the sexual activities. At the time of incidence the prosecutrix was
major. In her cross-examination she has admitted that the
appellant/accused has not committed any rape upon her. She has
completely disowned the prosecution story in her cross-examination
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CRA No. 1871/2020
and that shows that she falsely implicated the appellant. The appellant
is in jail since 6.6.2016 i.e. for more than six years. This appeal is of
2020 and is not likely to be heard finally for the next 5-6 years. So far
as offence punishable u/s. 328 of the IPC and offence u/s. 66-D and
66-A of the Information Technology Act are concerned, the appellant
has already undergone the entire sentence. He, therefore, prays for
grant of suspension of sentence and release on bail.
On the other hand, learned Govt. Advocate appearing for the
respondent/State opposes the prayer and prayed for rejection of the
application.
We have perused the record of court below.
So far as offence u/s. 376(2)(J) of the IPC is concerned, in her
cross-examination the prosecutrix has stated that the appellant has not
committed any rape upon her. As per statement of Doctor who
examined the prosecutrix, no external or internal injury to establish
forceful sexual intercourse was found. There is no medical evidence in
respect of administration of intoxicating material or substance in the
juice taken by the prosecutrix. The father of the prosecutrix has denied
about the allegation of rape. The brother of the prosecutrix has also
turned hostile in respect of allegation of rape. So far as offence u/s.
328 of the IPC is concerned, no minimum sentence is prescribed. The
appellant is in custody since 6.6.2016 and the appeal is of the year
2020 and there is no likelihood of its being heard finally in the near
future.
In view of the aforesaid facts and circumstances of the case, we
find it is to be a fit case to suspend the custodial sentence of the
appellant.
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CRA No. 1871/2020
Accordingly, I.A. No.29702/2021 is allowed and it is directed
that subject to deposit of fine amount, if already not deposited, with
the trial Court and on furnishing personal bond by the appellant in the
sum of Rs.40,000/- (Forty Thousand only) with one solvent surety in
the like amount to the satisfaction of learned trial Court for his
appearance before the Registry of this Court, the execution of
custodial part of the sentence of the appellant shall remain suspended
till final disposal of this appeal.
The appellant after being enlarged on bail shall mark his
presence before the Registry of this Court on 19.12.2022 and on all
such subsequent dates, which are fixed in this behalf.
C.C. as per rules.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.05.04 17:48:54 +05'30'
