Shivam Gupta vs The State Of Madhya Pradesh
2023 Latest Caselaw 3175 MP

                                    1
            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                             CRA No. 4915 of 2021
                    (SHIVAM GUPTA Vs THE STATE OF MADHYA PRADESH)

Dated : 21-02-2023
      Shri M.S. Rawat - learned Advocate for the appellant.

      Shri Rajesh Shukla, - learned Deputy Advocate General for the
respondent-State.

Shri R.K. Joshi - learned Advocate for the complainant. Heard on I.A. No. 19205/2022, which is first application under Section 389(1) of Cr.P.C. moved on behalf of appellant.

Appellant stands convicted under Sections 376 of the IPC and sentenced to undergo Life Imprisonment with fine of Rs. 2000/- in default to suffer additional imprisonment, vide judgment dated 02/08/2021 passed by Special Judge (POCSO Act), Gohad District Bhind in Special Sessions Trial No. 17/2020.

As per prosecution story, from 18/01/2017 the prosecutrix had been at the house of her maternal uncle and on the said date at about 1.00 pm prosecutrix on the pretext of going back along with her maternal sister left the house and her maternal sister droped her till a pond. She was last seen with her

cousin at pond from where she disappeared. The report was registered at Crime No. 13/2017 under Section 363 of the IPC. Thereafter, during investigation she was recovered from house of the present appellant on 04/03/2017. Her statement was recorded under Section 161 as well as 164 of the Cr.P.C. Thereafter, upon collection of oral and documentary evidence and other material placed on record, challan was filed and case was committed to the Sessions Court. The Sessions Court on consideration of evidence placed

on record convicted the appellant and sentenced as aforesaid.

Learned counsel for appellant while taking exception to the impugned judgment submits that the impugned judgment suffers from patent perversity and illegality. It is submitted that prosecutrix (P.W.1) herself has deposed in ocular evidence that she knew the appellant and had been friendly with him. She used to talk with him on phone. She has stayed with him for three months. Appellant did not put any pressure or any threat to keep her confined in the house. She stayed with him voluntarily. She did not file any complaint to the police. Learned counsel for the appellant also refers to the evidence of father of the prosecutrix (P.W.2) to submit that even father of the prosecutrix (P.W.2)

does not know either date of birth or age of the prosecutrix. The Trial Court in para No.7 of the judgment though has dealt with issue related to date of birth but has recorded lopsided finding based upon its own assumption discarding the school register placed before the Court. In any case, it is not a case either abduction or rape. That apart, appellant has no criminal history. Appellant has also suffered one years and nine months jail incarceration without justifiable reasons. There is no likelihood of hearing of appeal. Hence, prays for suspension of sentence and grant of bail.

Per contra, State counsel opposes the application supporting the order impugned. However, learned counsel for the complainant does not oppose the application for suspension of sentence and grant of bail.

Hence, in the obtaining facts and circumstances of the case with due regard to the material on record, this Court is inclined to grant benefit of suspension of sentence and grant of bail to the appellant.

Accordingly, it is directed that the jail sentence of the appellant shall remain suspended 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.

Appellant is directed to appear before the Registry of this Court on 05/04/2023 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 the 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, I.A. No. 19205/2022 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)                                   (SATYENDRA KUMAR SINGH)
      JUDGE                                                JUDGE

Prachi


     PRACHI
     MISHRA
     2023.02.22
     10:58:07
     +05'30'