Madhya Pradesh High Court
Rupesh Jaiswal vs The State Of Madhya Pradesh on 13 July, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 2834 of 2023
(RUPESH JAISWAL Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 13-07-2023
Shri Sankalp Kochar - Advocate for the appellant.
Shri S. K. Kashyap - Government Advocate for the respondent
No.1/State.
Shri Yogendra Singh Baghel - Advocate for the respondent
No.2/objector.
Heard on I.A.No.4326/2023, which is the first application for
suspension of sentence and grant of bail filed under Section 389(1) of the
Cr.P.C. on behalf of sole appellant Rupesh Jaiswal.
2. The appellant has filed this Criminal Appeal being aggrieved by the
judgment of conviction and sentence dated 31/01/2023 passed by XIII
Additional Sessions Judge / Special Judge (POCSO Act), Bhopal, District
Bhopal in Special Case No.351/2021, whereby the appellant has been convicted
under Sections 366, 376(1), 201 of the IPC and Section 5 (J-ii)/6 of the
POCSO Act and sentenced him to undergo R.I. for 5 years with fine of
Rs.10,000/-, R.I. for 14 years with fine of Rs.40,000/-, R.I. for three years with
fine of Rs.10,000/- and R.I. for 14 years with fine of Rs.40,000/- respectively
with default stipulation.
3. Learned counsel for the appellant submits that in the written
complaint (Ex.P-3) place, date and time of the incident regarding sexual assault
is not mentioned. In the written complaint (Ex.P-3) only it is mentioned that
physical activity took place at Indore. In the statement of victim (Ex.D-1)
recorded under Section 161 of the Cr.P.C. it is mentioned that in January, 2016,
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Signing time: 7/14/2023
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appellant made physical relations with her. In the M.L.C. report (Ex.P-2) it is
mentioned that "she was in relationship with her boyfriend since last two years,
they had sexual relationship in the second week of February, 2016 at Indore"
and she gave history of sexual intercourse only once. Learned counsel further
submits that in the written complaint (Ex.P-3) presentation date of complaint
has not been mentioned, but as per the F.I.R. (Ex.P-4), the written complaint
was presented by the victim on 28/09/2016. Hence, complaint regarding sexual
offence was lodged after seven months. In the statement recorded under
Section 164 of the Cr.P.C. (Ex.P-6) it is mentioned that she was sexually
assaulted in the month of January, 2016. Learned trial Court has framed the
charge regarding sexual assault committed in the month of December, 2015 or
January, 2016 or February, 2016 and in the impugned judgment learned trial
Court has not given specific finding as to when appellant committed sexual
offence with the victim. It is also submitted that as per M.L.C. Report (Ex.P-2),
only once physical relation was made by the appellant with the victim, hence it
is not proved that when appellant committed sexual assaulted with the victim,
for which appellant was convicted and sentenced.
4. Learned counsel for the appellant further submitted that the FSL
report does not support the case of the prosecution. It is also submitted that the
age of the prosecutrix is also not proved by cogent legal evidence. The
prosecutrix has only proved the mark-sheet of 10th Standard during her
statement before the trial Court. The scholar register was not produced before
the trial Court and parents of the prosecutrix were also not examined before the
trial Court to prove the age of the victim. Learned counsel also submitted that
under the RTI Act appellant received document (application form for admission
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in school, scholar register etc.) regarding date of birth of the victim from her
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school, which is filed alongwith I.A.No.7037/2023, in which date of birth of the
prosecutrix is mentioned as 10/09/1997, so at the time of the incident, the age of
victim was more than 18 years, hence she was major.
5. Learned counsel for the appellant drew the attention of this Court
towards last seven lines of the statement of victim recorded under Section 161
of the Cr.P.C. and submits that report was lodged belatedly when her demands
were not fulfilled by the appellant. He further submitted that various cases are
registered against the victim and her mother. In this regard learned counsel drew
the attention of this Court towards Para nos. 126, 127 & 142 of the impugned
judgment, documents Ex.D-7, Ex.D-10 & Ex.D-11 and para nos. 33, 34 & 35
of the statement of victim (PW-3). Learned counsel for the appellant further
submits that there are various contradictions and omissions in the statement of
victim (PW-3) and no corroborative evidence is available on record. The trial
Court has failed to appreciate the glaring contradictions, omissions and
embellishments in the testimony of the victim (PW-3).
6. Learned counsel further submits that another false and frivolous
FIR (Ex.D-12) was lodged by the prosecutrix against the appellant during
pendency of the trial, which was registered at Crime No.354/2017 at Police
Station M.P. Nagar, District Bhopal for the offences punishable under Sections
294, 323, 324, 506 read with Section 34 of the IPC, in which Police after
investigation found that the entire FIR was false and fabricated. Thereafter,
learned lower Court also initiated criminal proceedings against the prosecutrix
under Sections 182, 211 of the IPC. Learned counsel further submitted that the
prosecution has not produced original register of the hotel at Indore, where it is
said that the appellant has caused sexual assault with the prosecutrix. In support
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of his arguments, learned counsel placed reliance on para nos.4, 5 & 6 of the
judgment passed by Hon'ble Apex Court in the cases of Rajak Mohammad
Vs. State of Himachal Pradesh, (2018) 9 SCC 248 and on para nos.8, 9, 10
& 12 of the judgment passed by Bombay High Court in the case of Sunil
Mahadev Patil Vs. State of Maharashtra, ABC 2016 (I) 34 BOM.
Learned counsel further submits that the appellant was on bail during trial and
he did not misuse the liberty granted to him. Appellant has no criminal
antecedents. This appeal is of the year 2023 and there is no possibility of early
hearing of this appeal in near future, hence prays for suspension of sentence
and grant of bail to the appellant.
7. Per contra, learned Government Advocate for the respondent/State
opposed the prayer and submits that on the date of incident the victim was
minor and victim has proved the prosecution case before the trial Court. In this
regard learned Government Advocate drew the attention of this Court towards
para nos. 14, 15, 23, 24, 29, 69 & 138 of the impugned judgment and submits
that the trial Court has passed the judgment after proper appreciation of
evidence, that came on record and has rightly held the appellant guilty for the
aforesaid offences, hence prays for dismissal of the application.
8. Learned counsel for the objector also opposed the prayer and
prays for dismissal of the application.
9. We have heard the rival contentions of the learned counsel for the
parties, perused the record and gone through the citations upon which reliance
is placed by the learned counsel for the appellant.
10. Considering the facts and circumstances of the case, including
overall evidence available on record, coupled with the fact that the hearing of
this appeal is not possible in near future, without expressing any opinion on
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Signed by: ANURAG SONI
Signing time: 7/14/2023
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merits, we deem it proper to suspend the remaining jail sentence of the
appellant. Accordingly, I.A No. 4326/2023 is allowed.
11. Subject to depositing the fine amount, if not already deposited,
the remaining jail sentence of appellant Rupesh Jaiswal, 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.50,000/- (Rupees fifty 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 concerning trial Court Bhopal on
12.09.2023 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
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Signed by: ANURAG SONI
Signing time: 7/14/2023
1:37:43 PM
