Rajendra Singh vs The State Of Madhya Pradesh
2022 Latest Caselaw 13829 MP

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         IN THE HIGH COURT OF MADHYA PRADESH
                                   AT INDORE
                            CRA No. 1860 of 2022
         (RAJENDRA SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH)

       The appeal coming for order on application for suspension on
this day and JUSTICE VIVEK RUSIA passed following:-
                                     ORDER

Dated : 27-10-2022 Shri Nitin Vyas, learned counsel for the appellant no.1-Rajendra. Shri Kamal Kumar Tiwari, learned Govt. Advocate for the respondent/State.

Heard on the question of admission. Admit.

Also Heard on I.A. No.12899/2022, first application filed under section 389(1) of the Cr.P.C.,1973 for suspension of jail sentence on behalf of appellant no.1-Rajendra.

The appellant and other co-accused persons have been convicted vide judgment dated 20.01.2022 passed by learned 5 th Additional Sessions Judge, Ratlam in S.T. No.300/2010 and sentenced as under:-

 Offence U/s        Sentence       Fine amount (Rs.)   Imprisonment in lieu of fine
                    Awarded                            amount
 366 (A) of the 6 years R.I.       Rs.2,000/-          2 months R.I.
 IPC
 376(2)(G) r/w 34 12 years R.I. Rs.2,000/-             2 months R.I.
 of the IPC
 368 of the IPC     5 years R.I.   Rs.1,000/-          1 month R.I.

Prosecution story in brief is that on date 22.04.2010, the father of the prosecutrix (PW-4) lodged a missing report No.21/2010 at P.S.-Station Road, District- Ratlam alleging that on 19.04.2010 he got a telephone call from his father-in-law in the evening at 7.00, that his younger daughter (prosecutrix) aged 14 years who lives with her maternal grandfather and studying in 8th class left home at 12 Noon, saying that she was going to Ratlam but went missing. They searched for her but she was not found.

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During the search for the missing person (prosecutrix), on 18.05.2010, her parents found her in Chhotipura, Seekar (Rajasthan), and brought her back with them to police chowki Saalikheda, PS-Station Road, District-Ratlam, where Panchnama Dastyaabi was prepared and statement of the prosecutrix was recorded in which she stated that she went to Ratlam to meet her maternal uncle. Appellants and other co-accused persons met her at Chamaria Naka and appellant-Anokhi Lal told her that her mother was sick and she has been hospitalized and they have come to take her to her mother. Therefore, she (prosecutrix) went with them and they took her to Bheelwara and threatened to kill her, and kept her in a room where the appellants- Rajendra, Bharat, and Anokhilal raped her repeatedly.

After recording the statement of the prosecutrix, F.I.R. Crime No.231/2010 under Sections 363,366, 376/506/34 of IPC was registered against the appellants and two other persons.

During the investigation, appellant and co-accused persons were arrested and after the completion of the investigation, a supplementary charge sheet under Sections 363, 366, 368, 341, 323, 376(2)(d), and 506/34 of IPC was filed against the appellants and co-accused persons, thereafter, the case was committed to the Sessions Court, Ratlam and then the case was made over to 1st Additional Sessions Judge, Ratlam for trial. The trial court framed the charges against the appellant and other co-accused under Sections 363, 366 (A), 368, 323/34, 376 (2) (g)/34, and 506/34 of IPC, which were denied by the appellants and they pleaded for trial.

After evaluating the evidence that came on record the trial court found the appellants guilty and convicted and sentenced as mentioned hereinabove. Being aggrieved by the said judgment of conviction and sentence, the appellant filed this criminal appeal before this Court.

Learned counsel for the appellant submits that the learned trial Court has committed an error to believe the statement of the prosecutrix on the

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basis of presumption and appellant has been wrongly convicted and sentenced for the offence and the conviction is bad in law. The appellant has been falsely implicated in the case. Learned trial Court has erred in holding the age of the prosecutrix of being about 14 years without there being any cogent evidence. The judgment of the trial Court is neither legal nor proper and is based on only presumptions. The learned trial court has also erred in not appreciating the evidence in the right prospect. One of the accused Shyamu Bai has been already acquitted in this case vide judgment dated 18.06.2011 after recording of statement of the prosecutrix and other witnesses, in which the prosecutrix and other witnesses did not support the prosecution case and turned hostile. Learned counsel for the appellant further submitted that he was on bail during the trial and they never misused the liberty granted to them. There is no possibility of an early hearing of the appeal in near future and the appellant is having parity with the co-accused persons who have been granted bail by the court hence, prays for suspension of the remaining jail sentence of the appellant.

Learned Govt. Advocate opposes the application for suspension of sentence and prays for its rejection.

Heard the learned counsel for the parties and perused the record. The appellant were on bail during the trial and there is no documentary evidence about the age of the prosecutrix, and in an earlier statement before the trial court, she and her parents did not support the prosecution case during the trial of co-accused Shyamu Bai and Looking at the omissions and contradictions in the statement of the prosecutrix and considering the facts and circumstances of the case in totality and arguments so advanced by the learned counsel for the appellant, we are of the considered opinion that it is proper to suspend the remaining jail sentence of the appellant. Accordingly, I.A. No.12899/2022 is allowed and stands disposed of.

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It is directed that the remaining jail sentence of the appellant- Rajendra shall remain suspended and he be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand Only), with one solvent surety of the like amount to the satisfaction of the trial Court and subject to depositing the fine amount (if not already deposited) with a further direction to appear before the registry of this High Court on 12.12.2022 and also on such other dates, as may be fixed by the concerned trial Court in this regard during the pendency of the appeal.

Certified copy as per rules.

            (VIVEK RUSIA )                                   (AMAR NATH (KESHARWANI))
               JUDGE                                                  JUDGE
   Ajit/-




PRAVEE
             Digitally signed by PRAVEEN NAYAK
             DN: c=IN, o=HIGH COURT OF MADHYA PRADESH

BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=abd63cf0e3e1a01c0a071b050f1479f89351 3e8936df395d932895fb7cd25c20,

N NAYAK pseudonym=7332802A9E4741BEFCF90D7C5397925 C8B42A137, serialNumber=19FA391EA2A01CD8AFA13E8452264 AABB9D10FC65CD9866A8335CEF62CEDFCFA, cn=PRAVEEN NAYAK Date: 2022.10.27 18:27:35 +05'30'