Madhya Pradesh High Court
Shyam vs The State Of Madhya Pradesh on 3 January, 2023
Author: Vivek Rusia
-1-
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
Criminal Appeal No.9502 of 2018
Shyam v/s The State of Madhya Pradesh
Indore, dated 03.01.2023
Shri Ashish Gupta, learned counsel for the appellant.
Shri Amit Singh Sisodia, learned Government Advocate for the
respondent/State.
Heard on I.A. No.3679/2022, which is third application under
Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of
jail sentence and grant of bail filed on behalf of appellant Shyam.
Earlier applications for suspension of jail sentence of appellant were
dismissed as withdrawn vide orders dated 5/8/2019 & 21/9/2021.
Vide judgment of conviction and sentence dated 15/11/2018 passed
by the First Additional Session Judge, Pachim Nimar Mandleshwar,
District Khargone in Special Sessions Trial No.300463/2016, whereby the
appellant was sentenced to undergo as under:-
CONVICTION SENTENCE
Section Act Imprisonment Fine if deposited Imprisonment in lieu of
details fine
366 IPC 5 years' R.I. Rs.5,000/- 6 months' R.I.
376(2)(n) IPC 10 years' R.I. Rs.5,000/- 1 year R.I.
As per prosecution story, on 26/01/2016 appellant has forcibly
abducted the prosecutrix (PW-1) and took her in a motorcycle and kept in
the house of co-accused Kunta for four days and committed rape with her.
She somehow escaped herself and lodged a report on 02/02/2016. She was
medically examined by Dr. S. Joshi (PW-11). At the time of examination
she was found pregnant of 6-8 weeks. Accordingly, F.I.R. has been
registered under Sections 363, 366, 376(2)(n), 342, 506, 368 of the IPC.
Signature Not Verified
Signed by: VARSHA SINGH
Signing time: 1/4/2023
4:06:09 PM
The appellant was tried by Session Court and vide impugned judgement he
has been convicted and sentenced as stated above.
Learned counsel for the appellant submits that the prosecutrix
travelled in the motorcycle alongwith appellant but she did not raised any
alarm, therefore, she was a consenting party. So far as the conviction
under Section 376 of the IPC, is concerned that has not been established by
the DNA report. She was said to have been abducted on 26/01/2016 and
examined on 02/02/2016, therefore, she could not have been carrying a
pregnancy of 6-8 weeks on 2/2/2016. There is no DNA report, therefore,
the conviction under Section 376 of the IPC is bad in law. The appellant
has undergone almost five years of sentence. This appeal is not likely to be
heard finally in the near future. Hence, the jail sentence of this appellant
may be suspended.
Learned Government Advocate for the respondent/State opposes the
application.
Heard.
Considering the facts and circumstances of the case, we are of the
considered opinion that the application for suspension of custodial
sentence moved on behalf of the appellant deserved to be allowed.
Accordingly, I.A. No.3679/2022, is allowed and it is directed that
subject to depositing fine amount and on furnishing personal bond by the
appellant-Shyam in the sum of Rs.50,000/- (Rupees Fifty Thousands Only)
with one solvent surety in the like amount to the satisfaction of the learned
trial Court for his appearance before the Court, the execution of custodial
part of the sentence shall remain suspended, till the final disposal of this
appeal. The appellant after being enlarged on bail, shall mark his presence
before the Registry of this Court on 13/03/2023 and on all such subsequent
Signature Not Verified
Signed by: VARSHA SINGH
Signing time: 1/4/2023
4:06:09 PM
dates, as may be fixed by the Registry of this Court in this regard.
Also, I.A. No.3679/2022 stands disposed off.
Certified copy, as per rules.
(VIVEK RUSIA)
JUDGE
vs
Signature Not Verified
Signed by: VARSHA SINGH
Signing time: 1/4/2023
4:06:09 PM
