Madhya Pradesh High Court
Rajesh vs The State Of Madhya Pradesh on 23 June, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 3121 of 2020
(RAJESH Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 23-06-2023
Shri R.S.Ghuraiya with Shri Samar Ghuraiya - Advocates for the
appellant.
Ms. Anjali Gyanani - Government Advocate for the respondent/State.
Heard on I.A. No.5760/2022, which is first application filed on behalf of
appellant under Section 389(1) of Cr.P.C seeking suspension of sentence and
grant of bail.
Appellant stands convicted for sexual assault punishable under Sections
Section 5(M) and 5 (N) read with Section 6 of the POCSO Act and Rape
punishable under Section 376 (A-B) of IPC on his daughter aged around Seven
years and sentenced under Section 376 (A-B) of IPC to undergo 20 Years' R.I.
with fine of Rs.3000/- with default stipulations vide judgment of conviction and
order of sentence dated 29.02.2020 by Special Judge under POCSO Act 2012,
Gwalior (M.P.) in Special Case No.449/2018.
As per prosecution story, the appellant/accused took his daughter in the
bathroom on 20.08.2018 around 9 `O' Clock in the morning and when mother
of survivor/victim knocked the door of the bathroom, the survivor came out
and accused went for his official duty. Thereafter, survivor confided to her
mother that her father got undressed in the bathroom and touched her private
parts and inserted his finger therein. Thereafter, on registration of FIR,
statements of the victim were recorded under Sections 161 as well as 164
Cr.P.C. besides her medical examination. After completion of investigation,
charge-sheet was filed and the case was committed to the Special Court. After
completion of trial, the appellant stands convicted and sentenced as referred
above.
Learned counsel for appellant submits that the mother of survivor
desires to live separate from the joint family, therefore, she used to quarrel with
the appellant. She used to leave her matrimonial house without informing
anybody and return late in the night. On 19.08.2018 also, the complainant came
very late in the night, therefore, there was a quarrel between appellant and his
wife. On 20.08.2018, the complainant left her matrimonial home with daughter
(victim) therefore, appellant lodged a report with the police on 20.08.2018 and
21.08.2018. He again made a written complaint to the Superintendent of Police
against his wife on 22.08.2018 and thereafter only, in the night, the complainant
took her minor daughter to police station and lodged instant false complaint.
Learned counsel referred to statement of Mamta (PW4) and invited attention of
the Court to Paras 13 and 14 of the judgment. Learned counsel submitted that
the Sessions Court failed to appreciate the factum of previous discord between
the parents of survivor i.e. appellant and the complainant and the set of events
detailed above leading to registration of FIR, sequel whereto the instant FIR
was filed by the complainant which created doubt on the truthfulness of
prosecution story. He further submits that as per the medical evidence, no
injury is found on the genitals of the survivor. It is a case of false implication.
The appellant is in custody for about three years and ten months. No criminal
antecedents have been reported against the appellant. Therefore, he may be
granted benefit of suspension of sentence.
Per contra, learned counsel for the respondent-State Ms. Gyanani
submitted that the survivor has deposed the incident with clarity which is duly
supported by her mother. There is no reason for false implication and there is
also no evidence of tutoring of survivor. Therefore, application for suspension
of sentence may be rejected.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions so advanced touching merits of the
case but regard being had to the fact that present appellant has suffered
incarceration of about three years and ten months coupled with the fact that
present appeal is of the year 2020 and there is no likelihood of early hearing of
the appeal, in the obtaining facts and circumstances, appellant is held entitled
for suspension of jail sentence.
Accordingly, I.A. No.5760/2022 stands allowed and it is directed that
the jail sentence of sole appellant - Rajesh shall remain suspended during
pendency of present appeal 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 subject to
verification of factum regarding deposit of fine amount. Appellant is directed to
appear before the Registry of this Court first on 17.08.2023 and on other
subsequent dates as may be fixed in this behalf.
Accordingly, IA No.5760/2022 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.
Certified copy as per rules
(ROHIT ARYA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
Rks
RAM KUMAR
Digitally signed by RAM KUMAR SHARMA
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh,
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SHARMA
pseudonym=3A2DD409C7E00166B001086C51C67E732E553F43,
serialNumber=3B922EA4FBB2AB6A4AC3EFC94C33671E3FD765EE70A3038453F8BC47FB9
A192F, cn=RAM KUMAR SHARMA
Date: 2023.06.23 18:29:12 +05'30'
