Madhya Pradesh High Court
Vijay Singh Kushwah vs The State Of Madhya Pradesh on 28 February, 2022
Author: Rohit Arya
01
THE HIGH COURT OF MADHYA PRADESH
CRA 4686/2021
(Vijay Singh Kushwah Vs. State of M.P.)
Gwalior, Dated: 28.02.2022
Shri Ayush Saxena, learned counsel for appellant.
Shri Vijay Sundram, learned Panel Lawyer for respondent/State.
PER: DEEPAK KUMAR AGARWAL J.
Heard on admission.
Appeal being arguable, is admitted for final hearing.
Also heard on IA No.26493/2021, first application under Section
389 of CrPC filed on behalf of appellant for suspension of sentence and
grant of bail.
Vide judgment dated 15.07.2021 passed by Special Judge
Prevention of Children from Sexual Offence Act 2012 in Special Case
No.79/2019, the appellant has been convicted under 376-D of IPC and
sentenced to undergo for 20 years R.I. with fine of Rs.10,000/- with
default stipulation.
In brief case of the prosecution is that on 01.07.2019, prosecutrix
aged about 14 years resident of Village Kaanspura Tahsil Joura District
Morena has submitted an application before Police Station Joura District
Morena against present appellant Vijay Singh Kushwah, Chhotu
Kushwah and one Sourabh Kushwah that on 30.06.2019 at about 7 pm
when she went to attend the call of nature, appellant Vijay Singh
Kuswah alongwith Chhotu Kushwah and Sourabh Kushwah came there
and forcefully took her in the garden of Guava where appellant accused
Vijay and co-accused Sourabh caught-hold of her hand and closed her
mouth. Thereafter co-accused Chhotu committed rape with her. After
sometime when she saw that her mother was coming there in search of
her, she shouted her mother to save herself due to which appellant Vijay
and other co-accused ran away. She came to her house alongwith her
mother and narrated the story to her parents. On her complaint crime
No. 425/2019 was registered. She was sent for medical examination.
Doctor opined that hymen was old torn and healed. No fresh injury was
found on her body. Appellant Vijay Singh and co-accused Chhotu
Kushwah were arrested. Since Accused Sourabh was juvenile, separate
charge-sheet has been filed against him before Juvenile Court. After
investigation charge-sheet has been filed against appellant Vijay Singh
and Chhotu Singh. Both the appellants were convicted as aforesaid.
Learned counsel for the appellant argued that despite the
prosecutrix having not been supported the prosecution case, learned
court below has convicted the appellant for the aforesaid offence.
Learned counsel for the State vehemently opposed the said IA by
submitting that DNA report is positive.
On going through the evidence of prosecutrix PW-1 wherein she
has stated that she is 19 years old. On the date of incident at about 9 pm,
when she went to attend the call of nature, 3-4 persons came over there
and caught-hold of her and forcibly made her to lie on the ground
committed rape with her. During this rest of accused caughthold of her.
She tried to shout to save herself but since it was secluded place and
moreover it was night, nobody listened her. She could not identify the
aforesaid persons due to darkness. She went to lodge the report on the
morning of next day. In report, she neither named appellant Vijay Singh
and co-accused Chhotu nor gave any application to this effect.
Looking to the facts and circumstances of the case and statement
of prosecutrix and since the appeal is of 2021 and appellant is aged
about 22 years, this Court is inclined to allow IA 26493/2021 subject to
verification of fine amount amount deposited by the appellant and on
furnishing a personal bond in the sum of Rs.50,000/- (Rupees fifty
thousand only) with one solvent surety in the like amount to the
satisfaction of the concerned trial Court, the remaining jail sentence of
the appellant shall remain suspended and he shall be released on bail.
The appellant shall firstly appear before the Registry of this Court
on 13th June, 2022 and thereafter on all other subsequent dates as may
be fixed by the Registry in this regard, till disposal of this appeal.
C.C. as per rules.
(Rohit Arya) (Deepak Kumar Agarwal)
Judge Judge
ojha
YOGENDR
A OJHA
2022.02.19
12:06:51
+05'30'
