Madhya Pradesh High Court
Lavkush Shakya vs The State Of Madhya Pradesh on 14 December, 2023
Author: Rohit Arya
Bench: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 12299 of 2023
(LAVKUSH SHAKYA Vs THE STATE OF MADHYA PRADESH)
Dated : 14-12-2023
Smt. Uma Kushwah- Advocate for appellant.
Shri A.K.Nirankari- Public Prosecutor for respondent- State.
I.A. No.18107/2023, an application under Section 5 of Limitation Act is
taken up, considered and allowed for the reasons mentioned therein.
Delay of 143 days in filing the present appeal is hereby condoned.
Heard on admission.
Appeal being arguable is admitted for hearing.
Also heard on I.A.No.18862 of 2023, first application under Section
389(1) of Cr.P.C. moved on behalf of sole appellant - Lovekush for suspension
of jail sentence and grant of bail.
Vide judgment dated 04-03-2023 passed by Special Judge (POCSO Act,
2012), Shivpuri in Special Sessions Trial No.47 of 2020, the present appellant
has been convicted under Section 363 of IPC and sentenced to undergo two
years RI with fine of Rs.500/-, one year RI with fine of Rs. 500/- under Section
354 of IPC, three years RI with fine of Rs.500/- under Section 8 of POCSO
Act, life imprisonment with fine of Rs.2,000/- under Section 376(gha)(ka) of
IPC and further three years RI with fine of Rs.500/- under Section 366(ka) of
IPC with default stipulations. All the sentences have been directed to run
concurrently.
Prosecution case in brief is that the father of victim- prosecutrix, P.W.2
submitted a report on 25-08-2020 to the effect that on 24-08-2020 he and his
family went to sleep after having dinner. When he woke up around 01:00
midnight, his daughter-victim (PW1) was not found. Even after searching
nearby relatives, his daughter victim was not found. Victim used to talk with
present appellant Luvkush Shakya on phone, hence, he placed suspicion on
Luvkush. Based on above report, Police Station Dehat lodged an FIR under
Section 363 of IPC at Crime No.279 of 2020 and case was taken up for
investigation. During investigation, after recovery, statement of prosecutrix was
recorded by police in which she stated that she was taken away by three
accused person on motorcycle. Victim was medically examined and accused
were arrested. After completion of investigation and other formalities, charge
sheet was filed under Sections 363, 366, 376, 354 of IPC and under Sections 3,
4, 7, 8 of POCSO Act before competent Court from where case was
committed to the Special Court for its trial. In the statement of accused persons
recorded under Section 313 of Cr.P.C. they have expressed their innocence and
pleaded that they have been falsely implicated. In their defence, they did not
examine even a single witness. On appreciating evidence of prosecution
witnesses, trial Court after conclusion of trial, convicted and sentenced present
appellant along with other co-accused vide impugned judgment for offences, as
stated above.
Learned counsel for the appellant, while taking exception to the impugned
judgement of conviction and order of sentence, submits that appellant is
innocent and has been falsely implicated. The impugned judgment is based on
surmises and conjectures and suffers from vice of perversity. It is further
submitted that Jitendra Gupta (PW-6) in his evidence has specifically admitted
that the date of birth of victim has been changed to 03-04-2005 by the parents
of victim on the basis of birth certificate. In spite of this, the learned trial Court
has committed an error in convicting the present appellant by assessing the age
of victim as less than 16 years. It is further contended that victim in her Court
statement deposed that she used to talk with present appellant Luvkush Shakya
and in para 14 of her statement, she further deposed that on the date of incident,
when she opened the latch, there was no conversation with Luvkush and she
used to talk to Luvkush through her father's phone and Luvkush used to talk
only to know about her well-being. There is contradiction in his statements
recorded under Section 164 Cr.P.C. and the statement recorded before the trial
Court. It is further submitted that medical report is negative and there is no
opinion even in the report of Scientific Officer regarding DNA of Luvkush
being found in the victim's body whereby it does not corroborate prosecution
story and the prosecution story appears to be doubtful. That apart, present
appellant has already undergone more than 3 years and 4 months of
incarceration.Moreso, co-accused Monu Shakya & Manish Shakya has already
been extended benefit of suspension of sentence and grant of bail by this Court
vide order dated 06/09/2023 & 5/10/2023 in connected Criminal Appeal
No.4612/2023. Appeal is of the year 2023 and there is no likelihood of early
haring of the appeal in near future. On such grounds, learned counsel for
appellant prays for suspension of sentence and grant of bail to present
appellant.
Per contra, learned Public Prosecutor while supporting the judgment
impugned submits that no exception can be taken in the matter of grant of
benefit of suspension of sentence and grant of bail to present appellant looking
to nature and gravity of offence.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions touching merits of the case but regard
being had to the fact that present has already suffered about 3 years and 4
months of jail incarceration coupled with the fact that appeal is pending since
2023 and is not likely to be decided in the near future, in the obtaining facts and
circumstances, we are of the view that present appellant is entitled to the benefit
of suspension of sentence and grant of bail.
Accordingly, I.A. No.18862/2023 stands allowed and it is directed that
the jail sentence of present appellant - Lovekush Shakya shall remain
suspended during pendency of the present appeal and he shall be released on
bail subject to verification of the factum of depositing the fine amount and on
his furnishing a personal bond in the sum of Rs.1,00,000/- (Rs. One Lakh
Only) with one solvent surety in the like amount to the satisfaction of the trial
Court.
Present appellant is directed to appear before the Registry of this Court
first on 14/02/2024 and thereafter, on other subsequent dates as may be fixed
in this behalf.
Accordingly, the said I.A. 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) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
(Dubey)
