Prashant Nimgane vs The State Of Madhya Pradesh
2022 Latest Caselaw 13356 MP

Citation : 2022 Latest Caselaw 13356 MP
Judgement Date : 11 October, 2022

Madhya Pradesh High Court

Prashant Nimgane vs The State Of Madhya Pradesh on 11 October, 2022

Author: Rohit Arya

                                   1
            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                              CRA No. 6909 of 2022
                (PRASHANT NIMGANE Vs THE STATE OF MADHYA PRADESH)

Dated : 11-10-2022
      Shri Raj Kumar Shrivastava, learned counsel with Shri Vijay Kumar Jha,

Advocate for the appellant.
      Shri B.P.S. Bajitha, learned Public Prosecutor for the State.
      Heard on I.A. No.14108/2022; first application under Section 389 (1) of
Cr.P.C. filed on behalf of appellant Prashant Nimgane seeking suspension of
sentence and grant of bail.

      The said appellant stands convicted under Sections 347 and 376(2)(n) of
IPC and sentenced to one year RI with fine of Rs.500/- and 10 years RI with
fine of Rs.1000/- respectively with default stipulations, vide judgment dated
5.08.2022

passed in Sessions Trial No. 300147/2015 by Fourth Additional Judge to the Court of First Additional Sessions Judge, Datia.

So far, the appellant has undergone jail sentence for a period of four months and thirteen days.

A s per prosecution story, on 08.04.2013 the prosecutrix reported the matter to the concerning police that she was residing in the house of Munna

Kori. About three months back she was called by Prashant Nimgane (present appellant), son of Munna Kori, in the upper portion of the house where she was forcibly subjected to rape by him and she was threatened. The said offence of committing rape remained continued for three months. It is also the case of prosecution that the prosecutrix was kept inside the house. Initially, along with the present appellant three more persons namely, Manoj, Pramod and Rajendra (all four brothers) were made accused, thereafter during the course of police

investigation two persons, namely, Pramod and Rajendra were given clean chit by the police and no challan was filed against them. Ultimately, the trial Court concluded the trial and acquitted co-accused Manoj and convicted the present appellant and sentenced him as aforesaid.

Shri Shrivastava, learned counsel for the appellant while taking exception to the impugned judgment submits that the trial Court failed to appreciate the fact that proseuctrix has not supported the prosecution story in her cross- examination. Besides, the DNA report does not favour the prosecutrix. The impugned judgment is solely based upon the ratio of the judgment in the case of Khujji alias Surendra Tiwari vs. State of MP, reported in (1991) 3 SCC 627. In

the instant case the prosecurrix was examined on 21.12.2021 though could not be cross-examined, therefore the case was adjourned for 27.12.2021 and 31.1.2022 and the case was fixed for 2.2.2022, on which date the prosecutrix filed compromise application, whereby she did not support the prosecution story and turned hostile. She was cross-examined on the same day, whereas in Khujji's case (supra) cross-examination was done after one month of recording of examination-in-chief and presence of the accused was proved by cogent evidence and human blood was found on his clothes. However, the factual matrix of the case in hand is distinguishable. Therefore, the reliance on Khujji's case (supra) is misplaced. Hence, the impugned judgment suffers from perversity of approach. It is further submitted that appellant has no criminal antecedent. He is a young person. He has already suffered jail incarceration for a period of four months and thirteen days. Further jail incarceration in the company of hardened criminals shall seriously jeopardize his mental and physical condition. Therefore, prays for suspension of jail sentence.

Per contra, Mr. Bajitha, learned Public Prosecutor while supporting the

impugned judgment submits that even if the prosecutrix has turned hostile that, by itself, shall not belie the story of prosecution and, therefore, no exception can be taken to the impugned judgment for consideration of the instant application.

Upon hearing counsel for the parties, though this Court refrains from commenting upon the rival contentions, touching the merits of the case, regard being had to the fact that appellant has already suffered jail incarceration for a period of four months thirteen days, in the obtaining facts and circumstances of the case, I am of the view that appellant has no criminal antecedent, and therefore, he is entitled for bail. It is, accordingly, directed that execution order of jail sentence of appellant Prashant Nimgane shall remain suspended during pendency of this appeal and he shall be enlarged on bail subject to furnishing personal bond in the sum o f Rs.2,00,000/- (Rupees Two Lacs Only) with one solvent surety in the like amount to the satisfaction of the Trial Court and also subject to deposit of the fine amount (if not already deposited) for appearance before the Registry of this Court on 12/12/2022, and on further dates as may be directed by the Registry in that regard, with following further conditions:

( i ) Appellant will abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from to time in the matter of maintaining social distancing, physical distancing, hygiene, etc., to avoid proliferation of Novel Corona virus (COVID-19);

(ii) The concerned Jail Authorities are directed that before releasing appellant, his medical examination be conducted through the jail doctor

and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action including the isolation/quarantine or any further test required be undertaken immediately.