Madhya Pradesh High Court
Mukesh @ Guddu Gaur vs The State Of Madhya Pradesh on 21 December, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 12905 of 2023
(MUKESH @ GUDDU GAUR Vs THE STATE OF MADHYA PRADESH)
Dated : 21-12-2023
Shri Pradeep Katare, learned counsel for the appellant.
Shri Purushottam Tanwar, learned Panel Lawyer for the State.
Heard on the question of admission.
Being arguable, the appeal is admitted for final hearing.
Heard on IA No.19070/2023, first application under Section 389(1)
Cr.P.C. moved on behalf of the appellant- Mukesh @ Guddu Gaur seeking
suspension of sentence and grant of bail.
Appellant stands convicted under Section 376 of IPC and sentenced to
undergo ten years RI with fine of 1,000/- and U/s 323 of IPC and sentenced to
undergo one year's RI with fine of Rs.1,000/- respectively with default
stipulations vide judgment of conviction and sentence dated 26.09.2023 passed
by Ist Additional District and Sessions Judge, Gohad, District Bhind (M.P.) in
ST No.32/2019.
Learned Counsel for appellant in addition to the ground mentioned in the
application submits that the learned Trial Court has committed grave error in
convicting and sentencing the present appellant for offence punishable under
Section 376 of IPC without appreciating the prosecution evidence properly.
Learned counsel referring to written complaint Exhibit (P-1) submitted by the
prosecutrix on 03.03.2019 contends that there is no allegation of rape or sexual
assault in the hand written complaint. When the prosecutrix was forwarded for
recording of statement under Section 164 of CrPC, she stated before learned
JMFC, Gohad that accused has committed rape on her, therefore, offence
Signature Not Verified
Signed by: VIJAY TRIPATHI
Signing time: 22-12-2023
10:21:08 AM
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punishable under Section 376 of IPC was added in the investigation. During
investigation, vaginal slide, vaginal swab and undergarments of the prosecutrix
were seized on 05.03.2019. They were forwarded for DNA examination with the
source material seized from the accused. The DNA Report concluded that the
DNA profile Y-STR received from source material of the prosecutrix does not
match with the DNA profile Y-STR extracted from the blood sampling of the
accused/appellant. Learned trial Court ignored this evidence simply by
mentioning that DNA sampling was delayed. Learned counsel contends that the
DNA sampling was done merely two days after the alleged incident, therefore,
learned trial Court committed an error in ignoring the conclusive finding of DNA
Report in favour of the appellant. The appellant was on bail during trial and he
did not misuse the liberty so granted to him. Fine amount has already been
deposited by the appellant. Appellant has already undergone six months' of
imprisonment. There is no likelihood of hearing of appeal in near future. On
these grounds, learned Counsel prays that execution of remaining jail sentence
of appellant may be suspended and he may be enlarged on bail.
Per contra, learned Counsel for respondent State opposed the
application and prayed for its rejection.
Upon hearing learned Counsel for the parties but without commenting
upon rival contentions touching merits of the case, this Court is of the view that
application deserves to be allowed. It is, accordingly directed that execution of
remaining jail sentence of appellant shall remain suspended during pendency of
this appeal and he shall be enlarged on bail subject to furnishing personal bond
in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent
surety in the like amount to the satisfaction of Trial Court and also subject to
deposit of the fine amount (if not already deposited) for his appearance before
the Registry of this Court on 02.02.2024 and on further dates as may be
directed by the Registry in that regard.
Accordingly, I.A. No.19070/2023 stands allowed and disposed of.
List the matter for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
Vijay
