Madhya Pradesh High Court
Neta @ Netram Kushwaha vs The State Of Madhya Pradesh on 3 February, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 7642 of 2018
(NETA @ NETRAM KUSHWAHA Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 03-02-2023
Shri Padam Singh - Advocate for the appellant.
Ms. Anjali Gyanani - Public Prosecutor for the respondent/State.
Heard on IA No.11256 of 2021 , which is second application under
Section 389 of CrPC filed on behalf of appellant seeking suspension of
sentence and grant of bail.
Appellant stands convicted under Section 363 of IPC and sentenced to
suffer seven years' rigorous imprisonment with fine of Rs.5000/-, under Section
366 of IPC to suffer ten years' rigorous imprisonment with fine of Rs.5,000/-,
under Section 376(1) of IPC to undergo life imprisonment with fine of
Rs.10,000/- and under Section 3(A), 4 of POCSO Act to undergo life
imprisonment with fine of Rs.10,000/- as well as under Section 3(2)(v) of
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act to suffer
seven years' rigorous imprisonment with fine of Rs.10,000/- with default
stipulation vide judgment of conviction and order of sentence dated 06.09.2018
passed by Special Judge, Special Court, Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, Vidisha in Special Case No.50/2014.
As per prosecution story, complainant Kalyan Singh (PW-2) lodged an
FIR on 03/06/2013 at 5:00 in the evening that he earns his livelihood doing
labour work. His daughter/prosecutrix (PW-3) disclosed to him that on
01/06/2013 at about 10:30 A.M., prosecutrix had left the house to do mehandi
work for daughter of Heera Singh. However, she did not come back from
Mahuakheda till 4 O'clock in the evening. She was also not found in the house
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Signed by: MONIKA
SHARMA
Signing time: 04-02-2023
11:01:54 AM
of Heera Singh. While returning back, Phool Sing Ahirwar of village
Mahuakheda told him she had seen prosecutrix along-with appellant-Neta
Kushwah and accordingly, FIR was lodged. Upon completion of investigation,
challan was filed. The case was committed to Sessions Court. Upon evaluation
of the evidence placed on record, the trial Court convicted and sentenced the
appellant as aforesaid.
Shri Padam Singh, learned counsel for the appellant while taking
exception to the impugned judgment submits that Sessions Court did not
appreciate the oral testimony of the prosecutrix particularly in para 6 to 10, a
perusal whereof suggests that the prosecutrix had gone with the appellant on her
own violation and stayed with him for one and half month. It is a case of
consent. That apart, though the prosecution has alleged that the proseuctrix was
minor but looking to the evidence of father of the prosecutrix Kalyan Singh
(P.W.-2) particularly, in paras 5,6,7 and 8, it is well evident that the prosecutrix
could not be said to be a minor, as even her father did not know her date of
birth. He also did not disclose her date of birth in the school where she was
admitted. The teacher is alleged to have written her date of birth on his own.
Under such circumstances, a serious doubt was created as regards her date of
birth. The same has not been appreciated by the Sessions Court. Even
otherwise, the detailed deposition related to the date of marriage of the
complainant and birth of his children has disclosed in para 5 of his deposition
suggest that the prosecutrix could not be said to be a minor as on the alleged
date. Even otherwise, appellant has already suffered jail incarceration for four
and half years with no criminal antecedents. Appeal is of the year 2018. There is
no likelihood hearing of the appeal in near future. Hence, prays to suspend the
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jail sentence of the appellant and grant of bail.
Signed by: MONIKA
SHARMA
Signing time: 04-02-2023
11:01:54 AM
Per contra, Ms. Anjali Gyanani, learned Counsel for the State opposes
the application while supporting the impugned judgment with submission that
the trial Court in para 8 had dealt with the evidence and reached the conclusion
that the prosecutrix is minor and the appellant had manipulated her for sexual
reviews. Hence, no exception can be taken in the matter of suspension of
sentence. On such grounds, she prays for dismissal of the application.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions touching merits of the case, regard
being had to the fact that the appellant has suffered jail incarceration four and
half years, besides, prima facie looking to the testimony of Kalyan Singh (PW-
2) and prosecutrix (PW-3), we are of the view that the appellant deserves to be
enlarged on bail and suspend the jail sentence.
Accordingly, it is directed that the jail sentence of appellant shall remain
suspended and he shall be released on bail on his furnishing a personal bond in
the sum of Rs.2,00,000/- (Rupees Two Lakh only) with one solvent surety in
the like amount to the satisfaction of the trial Court. Appellant is directed to
appear before the Registry of this Court first on 05.04.2023 and on other
subsequent dates as may be fixed by Office in this behalf with following other
conditions:-
(i) Appellant will abide by the terms and conditions of various
circulars and orders issued by the Central Government and the State
Government as well as the local administration from time to time in the
matter of maintaining social distancing, physical distancing, hygiene, etc.
to avoid proliferation of Novel Corona virus (Covid-19);
(ii) The concerned Jail Authorities are directed that before releasing
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Signed by: MONIKA
SHARMA
Signing time: 04-02-2023
11:01:54 AM
appellant his medical examination be conducted through the jail doctor and
if it is prima facie found that he is having any symptom of COVID-19 then
the consequential follow up action including the isolation/quarantine or
any further test requested be undertaken immediately.
(iii) On violation of the conditions, State is free to apply for
cancellation of bail.
Accordingly, IA stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of disposal of the
application for suspension of sentence and shall have no hearing on the merits
of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Monika
Signature Not Verified
Signed by: MONIKA
SHARMA
Signing time: 04-02-2023
11:01:54 AM
