Kayum Khan vs The State Of Madhya Prdesh
2023 Latest Caselaw 13165 MP

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                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                      CRA No. 3055 of 2020
                                               (KAYUM KHAN Vs THE STATE OF MADHYA PRDESH)

                          Dated : 14-08-2023
                                Shri Shiv Pratap Singh Kushwah, learned counsel for appellant.

                                Shri Rajesh Kumar Shukla- learned Additional Advocate General for
                          respondent- State.

Per Justice Deepak Kumar Agarwal:-

Heard on IA.No.7238 of 2023, second application under Section

389(1) of CrPC moved on behalf of appellant Kayum Khan for suspension of jail sentence and grant of bail. First suspension application was dismissed as withdrawn.

Vide judgment dated 13-12-2019 passed by Special Judge (Atrocities), Guna in SPL Case SC ATR No. 67 of 2018, the appellant has been convicted under Section 376(1) read with Section 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced to undergo life imprisonment with fine of Rs.5,000/- and further convicted under Sections 451, 506 Part II of IPC read with Section 3(2)(v-a) of Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act and sentenced to undergo two- two years RI with fine of Rs.2,000-2,000/- with default stipulation. Both the sentences have been directed to run concurrently.

Briefly stated prosecution case is that on 02-02-2018 the prosecutrix who is a married lady aged about 25 years along with her husband lodged a report at police station alleging therein that on 01-02-2018 after taking dinner she, her husband and her two minor children aged about 02 years and five years slept in the house. In the night near about 11:00, someone knocked the door. When she Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 8/14/2023 5:30:24 PM

opened the door, appellant Kayum Khan entered in the house who was carrying a knife. After hearing her noise, her husband awoke. Appellant thereafter on the point of knife on her neck, the appellant took her alone in the courtyard and pushed her husband and both children in the room and bolted the door from outside and threatened by saying that if they raise any alarm, he will kill them due to such threats she did not raise any hue and cry. Thereafter, appellant pushed her down on the floor and committed rape with her in the courtyard. It is further alleged that appellant threatened her and her husband with dire consequences if she lodged a report and fled away from the spot. Due to threat, in the night of alleged date of incident, report could not be lodged by her and

on the next day report was lodged. Matter was investigated and after completion of investigation and other formalities, charge sheet was filed before the competent court from where the case was committed to the Special Court for its trial. After conclusion of trial, the trial Court after appreciating the prosecution evidence convicted and sentenced the present appellant for the aforesaid offence as mentioned above.

It is contended by counsel for the appellant that there is inconsistency in the evidence of prosecutrix and her husband. As per opinion of doctor, there is no external or internal injury found on the body of prosecutrix. There are major contradictions and omissions in her evidence and therefore, in absence of any other supporting evidence, there is no scope to sustain the conviction of the appellant. Even the DNA report was found to be negative. It is further contended that although as per allegation of prosecutrix, her bangles were broken at the time of scuffling with the appellant- accused on the date of incident but the investigating officer did not seize any such type of incriminating materials. It is further contended that the appellant is in custody since 05-02- Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 8/14/2023 5:30:24 PM

2018 and he has already served more than five and half years jail incarceration. This appeal is of the year 2020 and its final outcome will take some time. Hence, prayed for suspension of jail sentence and grant of bail.

Learned counsel for State opposed the suspension application and prayed for its rejection.

Considering the aforesaid facts and circumstances of the case as well as considering the period of custody but without commenting upon merits of the case, IA deserves to be and is hereby allowed. It is directed that jail sentence of appellant will remain under suspension subject to verification that amount of fine has been deposited, on appellant's furnishing bail bond of Rs.50,000/- (Rupees fifty thousand only) with one solvent surety of the like amount to the satisfaction of concerned trial Court for his appearance before the Principal Registrar of this Court on 22nd December, 2023 and on such further dates as may be fixed by the Office in this regard till disposal of the appeal.

Aforesaid IA stands closed.

Certified copy as per rules.

                            (ROHIT ARYA)                                   (DEEPAK KUMAR AGARWAL)
                               JUDGE                                                JUDGE

                          MKB




Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 8/14/2023
5:30:24 PM