Shaurabh Sharma vs The State Of Madhya Pradesh
2022 Latest Caselaw 16149 MP

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       IN THE HIGH COURT OF MADHYA PRADESH
                              AT GWALIOR
               Criminal Appeal No.4463 of 2021
                 (Saurabh Sharma Vs. The State of Madhya Pradesh)


Dated : 06-12-2022

      Shri Pawan Kumar Dwivedi, learned counsel for appellant.

      Shri B.P.S.Chauhan, learned Public Prosecutor for the

respondent/State.

Heard on I.A.No.14715 of 2022, first application under

Section 389 of Cr.P.C. for suspension of sentence and grant of bail

filed on behalf of appellant.

This criminal appeal under Section 374 of Cr.P.C. is

preferred by appellant against the judgment dated 23.06.2021

passed by the Special Judge (POCSO Act) Gwalior, (Madhya

Pradesh) in S.T.No.454/2018, whereby appellant has been

convicted as under :-

Sections Act Imprisonment Fine 5 (l) read POCSO Act R.I. for 10 years Rs.4000/-with default with 2012 stipulation Section 6

It is the submission of learned counsel for appellant that

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR Criminal Appeal No.4463 of 2021 (Saurabh Sharma Vs. The State of Madhya Pradesh)

appellant is suffering confinement since date of delivery of

judgment. Prior to it, appellant suffered also 5 months'

incarceration thus totaling 1 years 10 months' incarceration.

Learned counsel for the appellant referred the statement of

prosecutrix under Section 164 of Cr.P.C. vis-a-vis her court's

statement wherein she did not support prosecution story and

declared hostile. Even otherwise, all other witnesses including

family members of prosecutrix did not support the prosecution

story. Only source of conviction apparently is based on D.N.A.

report but sample has been collected after 18 days and as per the

article dated 02.03.2011 from Archival Notice of National Institute

of Justice, United States as well as the judgment passed by the

Division Bench of this Court in the case of In reference, Received

from Second Additional Sessions Judge, Bhind and others Vs.

Ankur & others dated 09.09.2019 passed in Cr.A.No.3539/2019

to bring home the facts that semen in vagina stands alive for three

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR Criminal Appeal No.4463 of 2021 (Saurabh Sharma Vs. The State of Madhya Pradesh)

days only (72 hours) and not beyond that. In F.S.L report obtained

from Forensic Science Laboratory Gwalior does not disclose

human semen in vaginal swab but surprisingly D.N.A. report from

Forensic Science Laboratory Sagar indicates that semen found and

matched with semen present in vaginal swab. This appears to be

contradictory and inconsistent. Appellant has good case on merits.

Hearing of the appeal will take time. Learned counsel fairly

submits that if appellant is released on bail then appellant shall

abide by all conditions imposed by this Court. Thus, prayed for

suspension of sentence and grant of bail.

Learned Public Prosecutor for the respondent/State opposed

the application and prayed for its dismissal.

Looking to the submissions made by learned counsel for the

parties as well as the fact that final hearing of this appeal would

take some time, application I.A.No.14715/2022 is hereby allowed.

If appellant Saurabh Sharma furnishes bail bond in the

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR Criminal Appeal No.4463 of 2021 (Saurabh Sharma Vs. The State of Madhya Pradesh)

sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with

one solvent surety of the like amount to the satisfaction of the

trial Court that he shall appear before the Principal Registrar of this

Court on 31-01-2023 and on all other subsequent dates as may be

fixed by the Office for appearance, then he shall be released on bail

and execution of jail sentence is suspended till disposal of this

appeal.

The appellant shall not move in the vicinity of the

complainant side in any manner and shall not be a source of

embarrassment or harassment to the complainant side in any

manner.

I.A.No.14715 of 2022 stands allowed and disposed of.

Copy of this order be sent to the trial Court concerned for compliance.

Certified copy as per rules.

                                                                         (ANAND PATHAK)
AK/-                                                                         JUDGE
       ANAND KUMAR
       2022.12.07
       09:48:51 +05'30'