Ashok vs The State Of Madhya Pradesh
2023 Latest Caselaw 2723 MP

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            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                              CRA No. 8884 of 2022
                      (ASHOK Vs THE STATE OF MADHYA PRADESH)

Dated : 14-02-2023
      Shri Anand Kumar Gupta- Advocate for the appellant.

      Shri A.K. Nirankari - Public Prosecutor for respondent/State.

Heard on IA No.3005/2023, which is second repeat application filed on behalf of appellant under Section 389(1) of Cr.P.C seeking suspension of sentence and grant of bail.

Appellant stands convicted under Section 5L/6 of the POCSO Act, 2012 and sentenced to undergo RI for 20 years with a fine of Rs.20,000/- with default stipulation vide judgment of conviction and order of sentence dated 18.08.2022 by Second Additional Sessions Judge and Special Judge (POCSO Act, 2012), Ganjbasoda, District Vidisha (M.P.) in Special Sessions Trial No.84/2020.

Appellant has so far undergone jail incarceration of 2 years and 4 months approx.

As per prosecution story, an FIR was lodged on 19.08.2020 inter-alia alleging that the appellant had sexually abused the prosecutrix about 4-5 months

ago in the month of February, 2020 while she had gone to meet her friend Neetu. She was not at home instead the present appellant was present at home who had caught her hand and pulled her in the room where he had sexually abused her and thereafter the appellant threatened her for dire consequences in case if the matter is reported to anybody. When she met him near the well, the appellant told her that she does not tell the incident to anyone as both of them can marry being the persons of same community. However, after 4-5 months as she conceived, she had stomach ache. She disclosed the aforesaid fact to her

grandmother and uncle. On their advice, she alongwith her uncle had gone to the police station for lodging the complaint. Accordingly, the case was registered at Crime Case No.94/2020. During the course of investigation, IO collected the inclusive material as well as the DNA report and submitted the challan and the case was committed for trial before the Sessions Court. The Sessions Court upon critical evaluation of the evidence placed on record has convicted and sentenced the appellant as referred above.

Shri Gupta, learned counsel for appellant while taking exception to the impugned judgment of conviction and order of sentence inter-alia submits that the Sessions Court has committed serious illegality in the matter of appreciation

of evidence. The judgment is based on conjectures and surmises. The relevant piece of evidence has not been considered. For instance, the DNA report which confirms that the appellant is not father of the son born to the proseuctrix. This very evidence ought to have been given due credence in the context of allegation of commission of rape upon the proseuctrix. That apart, there is no explanation forthcoming as regard delay of over 4-5 months in lodging of an FIR. The suggestions made to Shivcharan (PW/3), uncle of the prosecutrix particularly in para 8 wherein he was confronted with some obscene videos involving him with the prosecutrix. He fairly stated that she never lodged any complaint, hence, learned counsel submits that the possibility of sexual intercourse by Shivcharan (PW/3) with the prosecutrix cannot be ruled out in the obtaining facts and circumstances. However, no such case has been made by the prosecution. Even otherwise, the appellant has already undergone jail incarceration of 2 years and 4 months. The appeal is of the year 2022 and there is no likelihood of early hearing of the appeal in near future. On these grounds, learned counsel prays that execution of the jail sentence of appellant may be

suspended and he may be enlarged on bail.

Per contra, learned Public Prosecutor opposes the application supporting the judgment impugned with submission that the learned Sessions Court has dealt with the DNA report in paragraphs 51 and 64 and has concluded that even if, the appellant is not the biological father of the child born to the prosecutrix, his complicity in the alleged crime of rape committed upon the proseuctrix cannot be ruled out, as even after conceived, she could be sexually abused. Even otherwise, there is consistent evidence of the prosecutrix supporting the story of the prosecution whereunder the complicity of the appellant is at large. Hence, no exception can be taken in the matter of suspension of jail sentence. However, he fairly submits that the DNA report is negative and the applicant is not found to be the father of the child born to the prosecutrix.

Upon hearing learned counsel for the parties, though this Court refrains from commenting upon rival contentions so advanced touching merits of the case, regard being had to the fact that present appellant has suffered incarceration of about 2 years and 4 months coupled with the fact that the DNA report is negative; present appeal is of the year 2022 and there is no likelihood of early hearing of the appeal, in the obtaining facts and circumstances, appellant is held entitled for suspension of jail sentence.

Accordingly, we allow IA No.3005/2023 and it is directed that the jail sentence of 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.2,00,000/- (Rupees Two Lacs 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 28.04.2023 and on other subsequent dates as may be fixed in this behalf with following further conditions:-

( i) the concerned jail authorities are directed that before releasing the appellant, the medical examination of appellant be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action or any further test required be undertaken immediately. If not, appellant shall be released on bail in terms of the conditions imposed in this order ;

(ii) violation of conditions, State is free to apply for cancellation of bail.

Accordingly, IANo.3005/2023 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)                                      (MILIND RAMESH PHADKE)
     JUDGE                                                   JUDGE

pwn*
       PAWAN KUMAR
       2023.02.15
       15:08:01 +05'30'