Sandeep Patel @ Ravi Patel vs The State Of Madhya Pradesh
2023 Latest Caselaw 515 MP

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                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                      CRA No. 2738 of 2022
                                       (SANDEEP PATEL @ RAVI PATEL Vs THE STATE OF MADHYA PRADESH)

                          Dated : 09-01-2023
                                Shri Pushpendra Dubey - Advocate for the appellant.

                                Shri Ajay Shukla - Government Advocate for the respondent / State.

I.A. No.4965/2022, application for suspension of sentence and grant of bail to the appellant Sandeep Patel @ Ravi Patel arising out of judgment dated 24/02/2022 delivered in Special Sessions Trial No.47/2017 by Special Judge

(POCSO Act), Rewa is taken up.

T h e appellant has been convicted for the offence punishable under Section 376(I) of the IPC and sentenced to undergo R.I. for 11 years and fine of Rs.20,000/- with default stipulations.

Learned counsel for the appellant submits that as per prosecution story on 29/06/2017 at around 09:00 P.M. appellant called the victim and out of the house of victim sexually assaulted her. Naina Kushwaha the younger sister of victim (PW-3) and Golu Kushwaha (PW-8) have seen the incident.

Learned counsel for the appellant submits that Golu Kushwaha (PW-8)

has turned hostile and has not supported the prosecution story. Shivdas Kushwaha father of the victim (PW-4) categorically deposed that when he came back from his job, the family informed that a "lafda had taken place". His statement no where shows that family members informs the father about any sexual assault. Shri Dubey further submits that the statements of Urmila Kushwaha mother of the victim (PW-2) and Naina Kushwaha sister (PW-3) make it clear that there were enmity between the parties. Sanju cousin brother of the victim had assaulted the present appellant on previous day and thereafter Signature Not Verified Signed by: ANURAG SONI Signing time: 09-Jan-23 5:26:34 PM

also. Thus, for this reason of enmity, the appellant was falsely arraigned.

The reliance is also placed on the statement of victim and in cross- examination she described the act of "galat kaam". By placing heavy reliance on this paragraph of cross-examination, Shri Dubey submits that the description does not fall within the ambit of sexual assault / rape. The next criticism is on the FSL report. It is submitted that as per prosecution story the incident had taken place on 29/06/2017. The FIR was lodged on 30/06/2017. The appellant was subjected to medical examination on 01/07/2017, whereas victim was subjected to medical examination on 30/06/2017. The statement of Constable Kiran Gupta (PW-7) shows that she had taken the sample on 30/06/2017,

whereas as per seizure memo the sample was sent to Police Station on 02/07/2017. Thus, the custody and safety of sample between 30/06/2017 to 02/07/2017 is not explained. Apart from this, in seizure memo (Ex.P-9) Column No.4 which relates to the date of seizure of property, is left vacant. Thus, FSL report is also doubtful. But more so, when in the FSL report (Ex.-C-1) it is mentioned that sample were seized on 29/06/2017. In view of these contradictions and discrepancies the FSL report is highly doubtful. The appellant is arraigned because of enmity. Final hearing of this appeal is not possible in near future. Therefore, it is prayed that the remaining jail sentence of appellant may be suspended and he be released on bail.

Shri Ajay Shukla, learned Government Advocate for the State opposed the prayer on the basis of objection.

We have heard the parties on this aspect.

Considering the aforesaid factual backdrop and without expressing any conclusive opinion on the merits of the case, we deem it proper to suspend the

Signature Not Verified remaining jail sentence of this appellant. Accordingly, I.A. No. 4965/2022 is Signed by: ANURAG SONI Signing time: 09-Jan-23 5:26:34 PM

allowed.

Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of appellant- Sandeep Patel @ Ravi Patel 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.30,000/- (Rupees Thirty 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, Rewa on 01/05/2023 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 rules.

                               (SUJOY PAUL)                             (AMAR NATH (KESHARWANI))
                                  JUDGE                                          JUDGE

                          as




Signature Not Verified
Signed by: ANURAG SONI
Signing time: 09-Jan-23
5:26:34 PM