Madhya Pradesh High Court
Zeeshan @ Siddique vs The State Of Madhya Pradesh on 24 August, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 5062 of 2019
(ZEESHAN @ SIDDIQUE Vs THE STATE OF MADHYA PRADESH)
Dated : 24-08-2023
Shri Jitendra Sharma, learned counsel for the appellant.
Shri Sushant Tiwari, learned Public Prosecutor for the respondent-State.
Heard o n I.A. No.13969 of 2023, an application under Section 389(1)
of Cr.P.C. moved on behalf of the appellant for suspension of sentence and
grant of bail.
Appellant stands convicted under Section 6 of POCSO Act and Section
376-D of IPC (but sentenced to undergo 20 years' RI with fine of Rs.5000/-
under Section 376-D of IPC), Section 450 of IPC and sentenced to undergo 05
years' RI with fine of Rs.1000/-, Section 457 of IPC and sentenced to undergo
05 years' RI with fine of Rs.1000/- with default stipulations respectively vide
judgment of conviction and order of sentence dated 14-05-2019 passed by the
Special Judge (POCSO Act), Mungawali, District-Ashoknagar in Special
Sessions Trial No.05/2015.
As per prosecution story, on 16-02-2015 while prosecutrix alongwith her
sister was sleeping in her house in a room on 2nd floor, at about 04:00 in the
early morning, accused/ appellants Zeeshan @ Siddique and Dinesh entered the
room from the window. Accused Dinesh caught hold of hand of prosecutrix
and accused present appellant-Zeeshan committed rape over the prosecutrix.
On screaming of prosecutrix, her tenant-Halke woke up and he closed the
window and door from outside. Her parents also woke up and they caught the
accused persons on the spot and taken them to the Police Station. On the basis
of aforesaid, FIR was registered at Police Station Mungawali. After completion
of investigation, charge sheet was filed and the case was committed to the
Sessions Court. The Sessions Court upon critical evaluation of the evidence
placed on record has convicted and sentenced the appellant as referred above.
Learned counsel for the appellant while taking exception to the impugned
judgment submits that he has been falsely implicated in the case. No DNA test
was conducted by the prosecution to prove the rape by the appellant. Besides,
there is no independent witness except that of Halke Kushwaha (PW-17); tenant
of the prosecutrix, who also has turned hostile during trial. As such, the
impugned judgment is based on surmises and conjecture Moreso, appellant so
far has undergone 07 years and 08 months' incarceration including remission
period. Under such circumstances, learned counsel prays for suspension of
sentence and grant of bail to the appellant.
Per contra, learned counsel for the respondent-State opposes the
application with submission that prosecutrix was minor at the time of incident,
hence, no indulgence can be given in the matter of suspension of sentence and
grant of bail to the appellant.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions so advanced touching merits of the
case, but regard being had to the obtaining facts and circumstances of the case
and the fact that appellant so far has suffered 07 years' and 08 months'
incarceration, I.A. No.13969 of 2023 is allowed. Accordingly, it is directed
that the jail sentence of the appellant shall remain suspended during pendency of
present appeal and he be released on bail on his furnishing a personal bond in
the sum of Rs.1,00,000/- (Rupees One Lac only) with one solvent surety in
the like amount to the satisfaction of the trial Court subject to verification of
factum regarding deposit of fine amount. Appellant is directed to appear before
the Registry of this Court first on 11-10-2023 and on other subsequent dates
as may be fixed in this behalf.
Accordingly, I.A. No.13969 of 2023 stands allowed and disposed of.
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.
Certified copy as per rules.
(ROHIT ARYA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
vc
VARSHA
CHATURVEDI
2023.08.25
10:45:36
+05'30'
