Sonu Kewat vs The State Of Madhya Pradesh
2023 Latest Caselaw 6101 MP

IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 1321 of 2023

(SONU KEWAT Vs THE STATE OF MADHYA PRADESH)
Dated : 17-04-2023
Mr. Ashfag Khan-Advocate for the appellant.

Mr. Rajesh Shukla-Additional Advocate General for the respondent:State.

Heard on [.A.No.5046/2023, which is third repeat application under Section 389(1) of Cr.P.C. moved on behalf of sole appellant-Sonu Kewat seeking suspension of sentence and grant of bail.

Appellant stands convicted under Section 363 of IPC and sentenced to undergo 3 years' R.I. with fine of Rs.3,000/-, under Section 376(Gha, Ka) of IPC and sentenced to undergo Life Imprisonment with fine of Rs.20,000/-, under Section 366 of IPC and sentenced to undergo 7 years' R.I. with fine of Rs.5000/- and under Section 5(=)(ID/6 of POCSO Act with fine of Rs.10,000/- with default stipulations respectively vide judgment of conviction and order of sentence dated 29/12/2022 passed by Special Judge (POCSO) & Second Additional Sessions Judge, Datia, District Datia in Special Case No.36/2019.

First application (LA. No.1688/2023) of the applicant was dismissed as withdrawn on 15/02/2023 after hearing on merits at length. Thereafter, his second application (A. No.3666/2023) for interim bail was dismissed on 22/02/2023. Now, after few months, again the instant application has been filed. Apparently, there is no changed circumstance. Learned counsel for appellant again insisted and argued at length repeating the same arguments which advanced earlier. We do not appreciate such repeatedly applications filed in succession in short interval without any changed circumstance. As a mater of fact, such application deserves

to be rejected out-rnghtly; however, now we are not permitting the appellant to

withdraw the instant application and dealing with the same on merits.

Appellant so far has undergone 6 months and 28 days of jail sentence.

As per prosecution story, the victim's mother (PW-2 ) lodged an FIR in Police Station Kotwali, District Datia on 6/12/2017 that while she was returning with his younger daughter "S" from attending the marriage of her niece Gudia by bus, she alighted from the bus near Dinara Road railway crossing. It was around 10 O'clock in the morning. While she went a slightly distance of place to buy bananas, after some time to her surprised when she turned around and look behind, the prosecutrix aged about 15 years and 4 months disappeared. Despite intensive search, she could not be recovered. A missing report was filed. It was alleged that she has been manipulated and cajoled by some persons and accordingly, she has been abducted. She expressed her suspicion upon present appellant Sonu Raikwar and his friend Chotu alias Hotam Rajak. Upon such Missing Report No.42/17 and thereafter, FIR (Ex.P/17) at Crime Case No.534/2017 under Section 363 investigation started. The prosecutrix was recovered as late as on 20/07/2019. Her statements were recorded under Section 161 CrP.C. and also before the Magistrate under Section 164 Cr.P.C. Her blood samples were taken and sent for FSL report. In her statement before the police and the Magistrate as well as in her ocular evidence, she has reiterated that the present appellant and his friend Chotu had taken her away on a motorcycle under the pretext that they have already dropped her mother at her home and now they are take her at her home. Instead, she was driven to a Jungle area where she was subjected to ruthless rape by the present appellant and others. Thereafter, she was administered some liquid as a result she became unconscious. After she gain consciousness, she was given understand that she was in Ahmedabad. She was

kept 1n a room by the present appellant and other for months and subjected her to

rape one by one. Not only this, she was also dragged in flesh trade allowing other persons to come in the room and sexually abused her for a number of days. On such statements, her DNA report was also collected. The DNA report (Ex.P-35) has come positive as regards the rape committed on her. On such allegations and after completion of investigation, the challan was filed, the case was committed to the Sessions Court for trial. The Sessions Court upon critical evaluation of the evidence placed on record firstly has found proved that prosecutrix was minor at the time of incident as per Ex.P-14, an admission form wherein her date of birth was shown to be 5/8/2000 as well as her medical evidence. That apart, MLC (Ex.P/6) was also conducted wherein the report is positive as regards commission of rape and her conception (pregnancy). That apart, the trial Court in paras 32, 57, 60 & 94 has well discussed the incriminating ewdence on record and convicted and sentenced the appellant Sonu Kewat and along with Chotu as referred above. However, trial Court has acquitted one Narayan.

Learned counsel for appellant while taking exception to the impugned judgment iter alia submits that DNA report is not against him. The allegation of immoral trafficking has not been found proved against the present appellant as well evident from Para-35 of the judgement. Therefore, appellant's complicity is highly doubtful. The trial Judge has not dealt with the evidence in right perspective. On surmises and conjectures, appellant has been convicted. Appellant is a respectable citizen of the society. He has already undergone 6 months and 28 days of jail sentence. He is a young person. If a person of repute 1s forced to live in jail, he will not only suffered social stigma but also his status and his family status shall be brought to disrepute. Therefore, the appellant may be extended the benefit of suspension of sentence.

Per contra, Shri Rajesh Shukla, learned AAG for respondent/State while

referring to fact as adumbrated above in preceding paragraphs further submits that it is not a case of abduction of minor girl but also subjecting her to sexual abuse repeatedly by appellant and other co-acused at a distance place in Ahmedabad and thereafter, she has also been exposed to flesh trade at the hands of alien persons by these persons. The commission of the offence as found proved by the learned trial judge suggests that such persons involved in exploitation and abduction of minor girl and subjecting her to repeated sexual abuse, do not deserves leniency of this court as otherwise. the message to society shall be alarming. Despite, appellant has hardly undergone 6 months and 28 days of jail incarceration. The previous application of present appellant was rejected on 15/02/2023 (LA. No.1688/2023) & 22/2/2022 (LA. No.3666/2023) and now again the present application without any changed circumstnace on same grounds may not be entertained: therefore, the application deserves to be dismissed.

Upon hearing learned counsel for parties, though this Court refrains from commenting upon the rival contentions touching merits of the case but regard being had to consistent evidence of the prosecutrix on record supported by medical evidence, prima facie we are of the view that the present appellant does not deserve and accordingly, refused to extend the benefit of suspension of sentence.

Consequently, [.4.5046/2023 1s dismissed on merits.

Observations on facts, if any, are only for the purpose of deciding the

instant I.A. and shall have no bearing on the merits of the appeal.

(ROHIT ARYA) (SATYENDRA KUMAR SINGH) JUDGE JUDGE

(Dubey)

SUNEEL DUBEY 2023.04.17 19:14:46

-07'00"