Madhya Pradesh High Court
Dinesh Kumar vs The State Of Madhya Pradesh on 19 July, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 752 of 2018
(DINESH KUMAR Vs THE STATE OF MADHYA PRADESH)
Dated : 19-07-2023
Shri G.S. Sharma-Advocate for appellant.
Shri Rajesh Shukla-AAG for respondent/State.
Heard on I.A. No.7571/2023, first application under Section 389(1)
Cr.P.C. for suspension of sentence and grant of bail moved on behalf of sole
appellant-Dinesh Kumar.
Present appellant-Dinesh Kumar along with co-accused Meharwan stands
convicted under Section 366 of IPC and sentenced to undergo 10 years' R.I.
with fine of Rs.2,000/- and under Section 376(D) of IPC and sentenced to
undergo 20 years' R.I. with fine of Rs.2,000/- with default stipulation vide
judgement of conviction and order of sentenced dated 25/11/2017 passed by
Special Judge (Prevention of Atrocities), Sheopur (M.P.) in Special Trial
No.74/2016.
Present appellant so far has undergone jail incarceration of about six
years and 9 months including the period undergone during trial.
As per prosecution story, an FIR was lodged by the mother of
prosecutrix (PW-4), on 10/10/2016, at about 12:00 O'clock in the noon that the
prosecutrix was missing at about 9:00 O'clock in the morning on 9/10/2016.
When the prosecutrix returned home, she stated that co-accused Meharwan and
present appellant Dinesh Kumar manipulated her and taken her to a distant place
and sexually abused her. They left her at that place and threatened her of dire
consequences in case she reports the matter to the police. Upon registration of
FIR, incriminating materials were collected and final report was filed. The
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 7/20/2023
12:12:26 PM
Special Court upon critical evaluation of the evidence placed on record and
recording of statements of the material witnesses, has convicted and sentenced
the present appellant-Dinesh Kumar as referred above.
Learned counsel for sole appellant while taking exception to the
impugned judgment inter alia submits that there is no purported evidence as
regards the date of birth of prosecutrix regard being had to the evidence of
prosecutrix (PW-3), mother of prosecutrix (PW-4) and the school teacher
(PW-5). It is a case of consent as well evident from the statement of the
prosecutrix recorded on 13/10/2016 vide Ex.P-1. The ocular evidence of the
prosecutrix is in contrast to her statement under Section 161 Cr.P.C. The
medical evidence on record does not suggest any injuries on any part of her
body much less in her private part. Besides, she was found to be habitual in
sexual intercourse. Even otherwise, the present appellant has already undergone
more than six years and nine months of jail incarceration. Appeal is of the year
2018 and there is no likelihood of early hearing of the appeal in near future.
Moreso, similarly placed co-accused Meharwan has already been extended the
benefit of suspension of sentence and grant of bail by this Court on 27/01/2023
in connected Criminal Appeal No.785/2018. Under such circumstances, learned
counsel prays for suspension of sentence and grant of bail on behalf of present
appellant.
Per contra, learned counsel for respondent/State opposed the prayer
supporting the impugned judgment with submission that it is a case of gang rape
by two accused persons with a minor girl against her wishes. It is heinous crime
against the society. The Special court upon critical evaluation of evidence
placed on record, has recorded the impeccable finding. Hence, no exception
can be taken in the matter of benefit of suspension of sentence grant of bail to
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 7/20/2023
12:12:26 PM
present appellant.
Upon hearing learned counsel for parties, though this Court refrains from
commenting upon rival contentions so advanced touching merits of case but
regard being had to the fact that similarly placed co-accused Meharwan Singh
has already been extended the benefit of suspension of sentence on 27/01/2023
in connected Cr.A. No.785/2018 coupled with the fact that present appellant
has already suffered jail incarceration of more than six years and nine months,
appeal is of the year 2018 and there is no likelihood of early hearing of appeal in
near future, the present appellant is held entitled for suspension of sentence and
grant of bail.
Accordingly, I.A. No.7571/2023 stands allowed and it is directed that
the jail sentence of sole appellant-Dinesh Kumar shall remain suspended and
he be released on bail on his furnishing a personal bond in the sum of
Rs.2,00,000/- (Rupees Two Lakh Only) with one solvent surety in the like
amount to the satisfaction of the concerned Trial Court subject to verification of
factum regarding deposit of fine amount. Present appellant is directed to appear
before the Registry of this court on 20/09/2023 and thereafter, on other
subsequent dates as may be fixed by the Registry of this court in this behalf.
Accordingly, I.A. No.7571/2023 stands allowed and disposed of.
Observations on fact, 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) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
(Dubey)
Signature Not Verified
Signed by: SUNEEL DUBEY
Signing time: 7/20/2023
12:12:26 PM
