Jitendra @ Jittu Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 6674 MP

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                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                      CRA No. 8129 of 2022
                                        (JITENDRA @ JITTU TIWARI Vs THE STATE OF MADHYA PRADESH)

                          Dated : 25-04-2023
                                Shri Vishal Vincent Rajendra Daniel- Advocate for the appellant.

                                Shri S.K.Kashyap â€" Government Advocate for the respondent/State.

Heard on I.A.No.3004 of 2023, which is the first application for suspension of sentence and grant of bail filed under Section 389(1) of the Cr.P.C. on behalf of sole appellant Jitnedra @ Jittu.

The appellant has filed this Criminal Appeal being aggrieved by the judgment of conviction and sentence dated 29.08.2022 passed by Special Judge(POCSO Act), District Seoni (M.P.) in SCATR No.49/2020, whereby the appellant has been convicted under Section 376(D) of the IPC and sentenced to undergo R.I. for 20 years with fine of Rs.8,000/-, with default stipulation.

Learned counsel for the appellant submits that the learned Trial Court has convicted the appellant on the basis of DNA report (Ex.C-80) and further submits that prosecutrix (PW-1) has supported the prosecution case before the trial Court in her examination-in-Chief but, when she was cross-examined by the

defence counsel, she denied the factum of offence caused by appellant and submits that it is not a case where witness was win over by the defence. Learned counsel for the appellant also submits that jail sentence of other co- accused person Brajveer @ Bijju was suspended by this Court vide order dated 25.01.2023 passed in Cr.A. No.8914 of 2022 and jail sentence of other co- accused Pankaj was also suspended by this Court vide order dated 25.01.2023 passed in Cr.A. No.8225 of 2022 and submits that case of appellant is not different from the above accused persons. Learned counsel for the appellant Signature Not Verified Signed by: SARSWATI MEHRA Signing time: 27-Apr-23 4:37:42 PM

further submits that appellant was on bail during the trial and he did not misuse the liberty granted to him. He further submits that this appeal is of the year 2022 and there is no possibility of early hearing of this appeal in near future hence, prays for suspension of sentence and grant of bail to appellant.

Learned counsel for the appellant placed the reliance in the case of Khujji @ Surendra Tiwari vs. State of M.P. reported in (1991) 3 SCC 627 and Vikramjit Singh alias Vicky vs. State of Punjab reported in (2006) 12 SCC 306.

Per contra, learned counsel for the respondent/State opposed the prayer and submitted that trial Court has passed the judgment after proper appreciation

of evidence that came on record and has rightly held the appellant guilty for the aforesaid.

Learned counsel for the State also submits that the case of appellant is not similar with the case of other co-accused persons namely Brajveer @ Bijju and Pankaj and submits that named written complaint was lodged by the victim against the appellant -Jitendra Tiwari and she has also supported her statement recorded under Section 164 of the Cr.P.C and she has also deposed against the appellant in her examination-in-Chief before the trial Court and submits there is gap between examination-in-Chief and cross-examination, therefore, possibility of winning over of the witnesses cannot be denied and submits that victim is a juvenile hence, prays for dismissal of the application.

We have heard the learned counsel for the parties at length and perused the record.

Looking to the facts and circumstance of the case and statement of victim (PW-1), documentary evidence written complaint (Ex.P-1), FIR (Ex.P-

Signature Not Verified

2), and DNA report (Ex.C-80), we are not inclined to suspend the remaining jail Signed by: SARSWATI MEHRA Signing time: 27-Apr-23 4:37:42 PM

sentence of appellant.

Accordingly, IA No. 3004 of 2023 is hereby dismissed.

                               (SUJOY PAUL)                            (AMAR NATH (KESHARWANI))
                                  JUDGE                                         JUDGE

                          sm




Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 27-Apr-23
4:37:42 PM