Madhya Pradesh High Court
Mukesh vs The State Of Madhya Pradesh on 17 February, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 7756 of 2019
(MUKESH Vs THE STATE OF MADHYA PRADESH)
Dated : 17-02-2023
Ms. Indu Pandey - Advocate for the appellant.
Shri Ajay Shukla - Government Advocate for the respondent/State.
Heard on I.A.No.24624 of 2022, an application filed under Section
389(1) of the Cr.P.C for suspension of sentence and grant of bail to appellant
Mukesh arising out of judgment dated 25/07/2019 delivered in Special Trial
No.203/2017, by VI Additional & Sessions Judge, Chhindwara (MP).
The appellant has been convicted under Section 376(2)(n) of the IPC and
sentenced to undergo R.I. for 10 years with fine of Rs.3,000/-, Section 323 of
the IPC and sentenced to undergo R.I. for 1 year, Section 313 of the IPC and
sentenced to undergo R.I. for Life with fine of Rs.3,000/-, Section 318 of the
IPC and sentenced to undergo R.I. for 10 years with fine of Rs.3,000/-, Section
342 of the IPC and sentenced to undergo R.I. for 1 year and Section 506 of the
IPC and sentenced to undergo R.I. for 1 year, with default stipulations.
It is urged that as per prosecution story, the complainant 'J' lodged a
report in Police Station that in the year 2016 she used to visit Umreth for the
purpose of learning stitching. During that period, she developed affinity with
appellant who was running a cycle shop. A love affair developed between them.
On 17/01/2017 when prosecution was going back to her village from stitching
centre of Umreth, near Banjari Mata Temple, the appellant forcibly took her to
the forest and sexually assaulted her. She did not narrate this incident to the
family members. After one week therefrom, the appellant again sexually
assaulted her. He refused to solemnize marriage with the victim. The brother of
Signature Not Verified
Signed by: MANJU
Signing time:
2/17/2023 5:14:04 PM
appellant took her to his house and then appellant assaulted her. She was
forcibly taken to Moredongri and with the help of a Nurse, the abortion had
taken place. The brother of appellant and Nurse Nirmala were acquitted by the
Court below.
Ms. Indu Pandey, learned counsel for the appellant submits that the
Court below has committed an error of law in convicting the appellant under
Section 318 of IPC and imposing the sentence of 10 years R.I., whereas the
maximum sentence prescribed under the statute for committing offence under
Section 318 of the IPC is only 2 years. Section 313 of IPC is not applicable
submits learned counsel for the appellant by contending that neither fetus could
be found and detected nor the medical evidence supported the story of
prosecution. Dr. D. Moitra (PW-11) is a Radiologist who deposed that he
thoroughly examined the prosecutrix but did not find any symptoms of
abortion. The similar was the view of another Dr. Ranu Singh (PW-13). Thus,
in absence of clear evidence about abortion or disposal of fetus, the offences
under Section 313 & 318 of IPC could not be established.
The victim developed physical relations with consent. Appellant remain in
custody from 07/07/2017 to 09/03/2019 and from 22/05/2019 to 25/07/2019.
Thereafter, from the date of judgment i.e. 25/07/2019 the appellant is again in
custody. The total sentence imposed is for a period of 10 years. The appellant
has already undergone half of the actual sentence. Final hearing of this appeal is
not possible in near future. The case of prosecution is based on surmises and
conjectures. The appellant has a fair hope of succeeding in the present appeal.
Thus, remaining jail sentence of the appellant may be suspended.
Learned Government Advocate opposed the prayer on the basis of
Signature Not Verified
objection.
Signed by: MANJU
Signing time:
2/17/2023 5:14:04 PM
We have heard the parties at length and perused the record.
Considering the aforesaid factual backdrop, half of the sentence
undergone by appellant, coupled with the fact that the final hearing of this
appeal is not possible in near future, we deem it proper to suspend the
remaining jail sentence of the appellant.
Accordingly, I.A No.24624 of 2022 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of appellant Mukesh is hereby suspended and it is
directed that the appellant be released on bail on his furnishing a personal bond
for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent
surety of the like amount to the satisfaction of the trial Court with a further
direction to appear before the trial Court, Chhindwara on 08th May, 2023
and also on such other dates as may be fixed by the trial Court in this regard
during the pendency of this appeal.
Certified copy as per rule.
(SUJOY PAUL) (DWARKA DHISH BANSAL)
JUDGE JUDGE
manju
Signature Not Verified
Signed by: MANJU
Signing time:
2/17/2023 5:14:04 PM
