Kanhaiya Lal Kushwah @ Kandhai ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 804 MP

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                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT GWALIOR
                                                     CRA No. 10191 of 2022
                          (KANHAIYA LAL KUSHWAH @ KANDHAI KUSHWAH Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                          Dated : 13-01-2023
                                Shri Munnalal Tomar-Advocate for the appellant.

                                Dr. Anjali Gyanani-Public Prosecutor for respondent/State.

Heard on the question of admission.

Record of the Trial Court has been received.

Appeal being arguable is admitted for final hearing.

Also heard on I.A.No. 190 of 2023, second repeat application for suspension of sentence and grant of bail moved on behalf of appellant after dismissal of first one (IA.17218 of 2022) being withdrawn vide order dated 25.11.2022.

The appellant stands convicted under Sections 354, 323 IPC and Section 7/8 of POCSO Act and sentenced to pay fine of Rs.1,000/- under Section 323 IPC and to undergo three years' RI with a fine of Rs.1,000/- under Section 7/8 of POCSO with default stipulations vide judgment of conviction and order of sentence dated 17.10.2022 passed by III Additional Sessions Judge/Special

Judge (POCSO Act) Vidisha (M.P.) in SCATR No.31/2019.

It is submitted by learned counsel for the appellant that appellant has suffered incarceration of 105 days in toto i.e. 71 days during trial and 34 days from the date of impugned judgment.

As per prosecution story, on 23.01.2019, the prosecutrix lodged report at Police Station Gyaraspur to the effect that on 18.12.2018 at about 07 in the evening when she was going to answer the call of nature at that time two persons of her village who were sitting on the culvert, chased her on their Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 1/13/2023 7:14:02 PM

motorcycle, stopped it nearby the prosecurix and then one of them whose name is Kandhai Kushwah, present appellant, with an ill intention caught hold of her hands and pressed her breast. The other boy who was along with him was standing there. When she screamed, present appellant slapped her twice -thrice. At that time, on seeing her uncle Roop Singh approaching the place of incident who had seen them, they fled away therefrom by threatening for dire consequences, in case if the matter is reported. Accordingly, the case was registered. Investigation was started. Upon recording of statements of the prosecutrix and other witnesses and collection of incriminating material, challan was filed. The case was committed to the Special Court for trial.

The Special Judge upon critical evaluation of the evidence placed on record and recording of statements, convicted and sentenced the appellant as referred above.

Learned counsel for appellant while taking exception to the impugned judgment submits that the trial Court has not appreciated the evidence placed on record in correct perspective. Learned Trial Court has solely relied on the interested witnesses. It is further submitted that during trial the appellant was on bail and did not misuse the liberty granted to him and further he has deposited the entire amount of fine. The appeal is of the year 2022 and there is no likelihood of early hearing of this appeal in the near future. Under such circumstances, learned counsel prays for suspension of sentence and grant of bail on behalf of appellant.

Per contra, learned Public Prosecutor for the respondent-State opposed the application supporting the impugned judgment.

Upon hearing learned counsel for the rival parties, without commenting

Signature Not Verified upon the contentions so advanced touching the merits of the case, but regard Signed by: PAWAN DHARKAR Signing time: 1/13/2023 7:14:02 PM

being had to the fact that during trial appellant remained on bail and did not misuse the liberty so granted to him and he has also deposited the fine amount and final hearing of appeal will take time, therefore, jail sentence of appellant deserves to be suspended during pendency of the present appeal.

Accordingly, it is directed that the jail sentence of appellant shall remain suspended during pendency of the present appeal and he shall be released on bail subject to verification of the factum of depositing the fine amount and on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the Trial Court. He is directed to appear before the Registry of this Court first 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, his medical examination 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) if appellant is found to be involved in any activity disturbing the peace and tranquility of the area or any other criminal act, the bail

granted to him today shall stand automatically cancelled.

Accordingly, I.A.No. 190 of 2023 stands allowed. 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.

Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 1/13/2023 7:14:02 PM

(ROHIT ARYA) JUDGE pd

Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 1/13/2023 7:14:02 PM