Dinesh Barela vs The State Of Madhya Pradesh
2023 Latest Caselaw 167 MP

                                   1
            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                              CRA No. 4338 of 2018
                  (DINESH BARELA Vs THE STATE OF MADHYA PRADESH)

Dated : 03-01-2023
      Shri R.K.Joshi, learned counsel for the appellant.

      Smt.Anjali Gyanani, learned Public Prosecutor for the respondent-State.

Heard on I.A. No.13755/2022, which is first application under Section 389(1) of Cr.P.C. moved on behalf of the sole appellant seeking suspension of sentence and grant of bail.

Appellant stands convicted under Section 366 of IPC and sentenced to

undergo ten years' RI with fine of Rs.1000/- and Section 376 (1) read with Section 114 of IPC and sentenced to undergo life imprisonment with fine of Rs.10,000/- with default stipulation vide judgment of conviction and order of sentence dated 23rd November 2017 passed by the Third Additional Sessions Judge, Guna (Madhya Pradesh) in Sessions Trial No.396/2009.

Appellant has so far undergone jail incarceration of five years and six months including the period undergone during trial.

As per prosecution story, while the complainant was sleeping with her sister and her father in the house on 09.08.2001, at about 11.00 p.m. accused

Surat Singh and the present appellant Dinesh entered the house and claiming that they were the sons-in-law, had forcibly taken the complainant away from her house. Thereafter, co-accused Surat Singh is alleged to have committed rape while the present appellant was sitting at a distance. On the aforesaid allegations, FIR was lodged. After completion of investigation, charge sheet was filed and the case was committed to the Sessions Court. The Sessions Court upon critical evaluation of the evidence placed on record and recording

t h e statements of the material witnesses has convicted and sentenced the appellant as referred above.

Learned counsel for the appellant while taking exception to the impugned judgment submits that the appellant admittedly has neither caused any hurt nor sexually abused or committed rape upon the complainant. The main accused is Surat Singh, who is alleged to have committed rape. That apart, Dr.Sitaram Singh Raghuvanshi (P.W.3), who had conducted ossification of the complainant, has clearly stated that her age was assessed between 18-19 years, as is well evident from para 8 of the impugned judgment. She was also found to be habitual of sexual intercourse. Besides, appellant is found to have committed

offence of abetment, as reflected from para 42 of the impugned judgment. Even otherwise, appellant has already suffered jail incarceration of five years and six months with no criminal antecedents. Appeal is of the year 2018 and there is no likelihood of early hearing of this appeal in the near future. Under such circumstance, learned counsel prays for suspension of sentence and grant of bail on behalf of appellant.

Per contra, learned counsel for the respondent-State opposed the prayer supporting the impugned judgment with the submission that the appellant alongwith the main accused had entered the house of the complainant and had forcibly taken her away. Thereafter though she was subjected to abuse by the main accused and not by the appellant as per the prosecution story, but his complicity in the alleged crime can not be ruled out, hence, no exception can be taken in the matter of suspension of sentence.

Upon hearing learned counsel for the parties, though this Court refrains from commenting upon rival contentions so advanced touching merits of the case, but regard being had to the fact that appellant has already suffered jail

incarceration of five years and six months and that appeal is of the year 2018 and there is no likelihood of early hearing of the appeal, the appellant is held entitled for suspension of jail sentence.

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.1,50,000/- (Rupees One Lakh and Fifty Thousand 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 on 15.03.2023 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 she 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.13755/2018 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
  SP
SANJEEV
KUMAR PHANSE
2023.01.04
11:44:04 +05'30'