Makhan Raikwar vs The State Of Madhya Pradesh
2023 Latest Caselaw 8834 MP

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                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                      CRA No. 3324 of 2023
                                            (MAKHAN RAIKWAR Vs THE STATE OF MADHYA PRADESH)

                          Dated : 15-06-2023
                                Shri D.S. Tomar- Advocate for the appellant.

                                Shri A.K. Nirankari- Public Prosecutor for the respondent/State.

Heard on I.A.No.4440 of 2023, which is the first application for suspension of sentence and grant of bail moved on behalf of the appellant.

Present appellant stood convicted under Sections 363, 366, 376(2)(n) of

IPC and under Sections 3/4, 5L/6 of POCSO Act and sentenced to undergo RI for three years with a fine of Rs.500/-, RI for three years with a fine of Rs.500/-, RI for twenty years with a fine of Rs.500/-, RI for ten years with a fine of Rs.500/- and RI for twenty years with a fine of Rs.500/- with default stipulations vide judgment of conviction and order of sentence dated 25.01.2023 passed by Additional Sessions Judge, Kurwai, District Vidisha (M.P.) in S.S.T. No.05/2022.

Appellant has been in custody since 14.03.2022.

Appellant is alleged to have abducted the prosecutrix and thereafter

committed rape, as a result initially missing report was lodged and then FIR was lodged. Upon completion of investigation, challan was filed. Case was committed for sessions trial. The Sessions Court upon critical evaluation of evidence placed on record has convicted the appellant for the offences and sentenced as aforesaid primarily on the premise that prosecutrix who was minor aged about 16 years and studying in Class 10, was manipulated and abducted. Thereafter, she was sexually abused. The DNA report was positive and MLC also corroborated the allegation of rape.

Signature Not Verified Signed by: PAWAN DHARKAR Signing time: 6/15/2023 5:06:14 PM

Learned counsel for the appellant while questioning the justifiability of the conviction and sentence, at the first instance, submitted that as a matter of fact the appellant and the prosecutrix solemnized marriage in a temple. Thereafter, they lived like husband and wife. Out of their cohabitation, they were blessed with two children. Prosecutrix and two children are residing at his house. Further, the falsity of allegation of rape is writ large as the prosecutrix as well as mother both have turned hostile and belied the story of prosecution. The appeal is of the year 2023 and there is no likelihood of early hearing of the appeal in near future. On these grounds, learned counsel prays that execution of the jail sentence of appellant may be suspended during pendency of the present appeal

and he may be enlarged on bail.

Per contra, learned Public Prosecutor for respondent/State supporting the judgment impugned opposed the application and prayed for its rejection.

Upon hearing learned counsel for the parties though this Court refrains from commenting upon the rival contention touching merits of the matter but regard being had to the fact that the appeal is of the year 2023 in the obtaining facts and circumstances of the case, it is a fit case for suspension of sentence and hence, the appellant is held entitled for suspension of sentence, thus the application deserves to be allowed.

Consequently, I.A.No.4440 of 2023 is hereby allowed and 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.1,00,000/- (Rupees One Lac Only) with one solvent surety in the like amount to the satisfaction of the trial Court and also subject to deposit of the fine amount (if not already deposited). The appellant is directed to mark his appearance before the Registry

Signature Not Verified of this Court first on 03.08.2023 and on other subsequent dates as may be Signed by: PAWAN DHARKAR Signing time: 6/15/2023 5:06:14 PM

fixed in this behalf with following further conditions:-

(i) Appellant will abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from to time in the matter of maintaining social distancing, physical distancing, hygiene, etc., to avoid proliferation of Novel Corona virus (COVID-19);

(ii) The concerned Jail Authorities are directed that before releasing appellant, his medical examination be conducted through the jail doctor and if it is prima facie found that he is having any symptom of COVID-19, then the consequential follow up action including the isolation/quarantine or any further test required be undertaken immediately.

(iii) Appellant shall mark his attendance before the concerned police station on 2nd and 4th Saturday every month between 10:00 a.m. to 12:00 noon;

(iv) On violation of the conditions, State is free to apply for cancellation of bail.

Accordingly, the I.A. 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.

                               (ROHIT ARYA)                                  (SANJEEV S KALGAONKAR)
                                  JUDGE                                               JUDGE

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Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 6/15/2023
5:06:14 PM