Dhara Singh Kushwah @ Dhara vs The State Of Madhya Pradesh
2023 Latest Caselaw 9822 MP

                                                               1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                      CRA No. 3062 of 2022
                                      (DHARA SINGH KUSHWAH @ DHARA Vs THE STATE OF MADHYA PRADESH)

                           Dated : 28-06-2023
                                 Shri Atul Gupta- Advocate for the appellant.

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

Heard on IA. No. 17887 of 2022, which is the first application under Section 389 (1) of Cr.P.C. seeking suspension of sentence and grant of bail moved on behalf of the appellant.

Appellant stood convicted under Section 376(D) of IPC and sentenced

to undergo 20 years' RI with fine of Rs.10,000/- with default stipulations vide judgment of conviction and order of sentence dated 25.02.2022 passed by Special Judge (POCSO) Act/8th Additional Sessions Judge, Morena in Special Sessions Case No.16/2019.

Present appellant has so far undergone incarceration of about 1 year and 11 months jail sentence.

Prosecution case in brief is that while the complainant aged about 17 years had gone to respond nature's call at about 6:00 PM in the evening on 02.01.201, at that time, the present appellant and one juvenile, in conflict with

law came there. Juvenile gaged her mouth with cloth and present appellant is alleged to have committed rape. Incidentally, her uncle, the complainant Suresh happended to pass through the site no sooner the appellant and the juvenile, in conflict with law saw him. On such allegations, FIR was lodged and enquiry was started. Upon completion of investigation, Challan was filed. The case was committed to the Sessions Court. During investigation though FSL report was requisitioned but there is no DNA report. The Sessions Court upon critical Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 28-06-2023 05:16:44 PM

evaluation of the evidence placed on record has convicted and sentenced the appellant as referred above.

Shri Atul Gupta, learned counsel for the appellant while taking exception to the impugned judgment submits that it is a case of false implication. Shri Gupta submits that prosecutrix has belied the story of prosecution in her testimony in the Juvenile Justice Board during trial of the juvenile in conflict with law. However, she has taken a somersault in her ocular evidence during tiral. The appellant though said to be a minor but she is major and it is a case of consent. The MLC report of the prosecutrix does not suggest any scratch or abrasion on in any part of her body much less the private part. Hence, prayer is

made for suspension of sentence and grant of bail on behalf of the appellant.

Per contra, learned Public Prosecutor for the respondent-State while supporting the impugned judgment opposes the application for suspension of sentence but fairly submits that there is no DNA test of the appellant in the incident. However, eye-witness account of Suresh, uncle of the prosecutrix PW-7, as well as the prosecutrix (PW-2) corroborates the story of the prosecution.

Upon hearing learned counsel for the parties but without commenting upon the rival contentions so advanced touching merits of the case and in the obtaining facts and circumstances of the case, we deem it a fit case to extend the benefit of suspension of sentence and grant of bail to the present appellant. Accordingly, it is directed that the jail sentence of present appellant shall remain suspended during pendency of present appeal and he shall be released on bail on his furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in the like amount to the satisfaction of the Trial Court. Appellant is directed to appear before the Registry of this Court Signature Not Verified Signed by: AVINASH BHARGAV Signing time: 28-06-2023 05:16:44 PM

first on 26-07-2023 and on other subsequent dates as may be fixed in this behalf.

Accordingly, the I.A. stands allowed and disposed of. Observations on facts, if any, are only for the purpose of disposal of the instant application for suspension of sentence and shall have no bearing on the merits of the appeal.

Certified copy as per rules.

                             (ROHIT ARYA)                                  (SANJEEV S KALGAONKAR)
                                JUDGE                                              JUDGE

                           Avi




Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 28-06-2023
05:16:44 PM