Nagendra Kushwah vs The State Of Madhya Pradesh
2023 Latest Caselaw 12919 MP

                                      1

        IN THE HIGH COURT OF MADHYA PRADESH

                            AT GWALIOR
                             CRA-4201-2023

      (NAGENDRA KUSHWAH Vs . STATE OF MADHYA PRADESH)

DATED:- 09-08-2023

      Shri Rajmani Bansal- Advocate for the appellant.
      Shri A.K. Nirankari - Public Prosecutor for the respondent/State.

Per Justice Deepak Kumar Agarwal:

Heard on I.A. No.14380/2023, second application under Section 389 (1) of Cr.P.C. for suspension of sentence and grant of bail moved on behalf of the sole appellant - Nagendra Kushwah.

This criminal appeal assails the judgment dated 24/02/2023 passed in Special Case No.89/2021 by Special Judge of POCSO Act, District- Morena (M.P.), whereby the appellant has been convicted and sentenced as under:-

Section Sentence Fine (Rs.) Default Stipulation

3/4 (2) of POCSO Act 20 Years RI 10,000/- 3 Months RI Prosecution case, in brief, is that on 26/08/2021 at 11:00 PM, mother of prosecutrix lodged a missing report of the prosecutrix aged about 15 years raising suspicion on the present appellant. On her report, FIR bearing Crime No.532/2021 was registered under Section 363 of IPC against the appellant. During investigation, prosecutrix was recovered on the same day i.e. 26/08/2021 and her statement under Section 161 of Cr.P.C. was also recorded on the same day in which she stated that for last 4-5 months, appellant used to come to her house for electrical work and he started liking her and gave her a mobile phone from which she used to talk

with him. Appellant told him that they would perform marriage and live together. On 26/08/2021 at 4:00 AM, she went alongwith the appellant to Jaura and thereafter, by taxi they reached at Morena. Appellant took her in some lane where he committed sexual intercourse with her. Thereafter, they were walking here and there. At 6:00 PM, police alongwith family members came and took them to police station. Thereafter, other offence was added. Appellant was arrested and after completion of investigation, charge-sheet has been submitted. After conclusion of trial, trial Court convicted the appellant for the offence as mentioned above.

Learned counsel for the appellants submits that appellant has been falsely implicated in this case and he has been wrongly convicted by the learned trial Court. It is further submitted that sample of DNA was taken after six months of incident and prosecutrix has been examined who has not supported the prosecution case and turned hostile. Appellant has suffered more than one year and ten months of incarceration and he is the permanent resident of District- Morena (M.P.) and there are fair chances of success of this appeal. The appeal is of the year 2023 which may take long time for its conclusion and the appellant cannot be kept in custody for an unlimited period. Under these circumstances, the execution of jail sentence be suspended and the appellant be released on bail.

On the other hand, learned Public Prosecutor appearing on behalf of the respondent/State opposed the bail application and prayed for rejection of this application.

Keeping in view of the aforesaid submissions of learned counsel for the parties and the fact that prosecutrix has not supported the prosecution case and turned hostile, IA No.14380/2023 is allowed. It is, therefore, directed that if appellant deposits the entire fine amount, if not already

deposited, and furnishes a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of trial Court for his appearance before the Registry of this Court on 14th of December, 2023 and on such subsequent dates as may be fixed in this regard, sentence of imprisonment awarded to him, shall remain suspended till further orders and he shall be released on bail.

I.A. No.14380/2023 stands allowed and disposed of. Certified copy as per rules.

                    (ROHIT ARYA)                                               (DEEPAK KUMAR AGARWAL)
                       JUDGE                                                           JUDGE


              Digitally signed by RAHUL SINGH PARIHAR

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH

RAHUL SINGH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh,

rahul 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab67 6d0cde4dee473fe77953f5,

PARIHAR pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D 487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910 FD4AB9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2023.08.10 13:40:11 +05'30'