Jitendra Raikwar vs State Of Madhya Pradesh
2023 Latest Caselaw 4264 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 9083 of 2019 (JITENDRA RAIKWAR Vs STATE OF MADHYA PRADESH AND OTHERS)

Dated : 17-03-2023 Shri Bharat Kumar Kachere- counsel for the appellant.

Shri Dilip Shrivastava- Government Advocate for the State.

Heard on I.A.No.5246/2023, an application for suspension of sentence on behalf of appellant-Jitendra Raikwar.

Vide impugned judgment dated 16.10.2019 passed by the Additional

Sessions Judge, Niwari in Special Case No.13/20118 the appellant has been convicted for offences under sections 376(3), 366(A) of IPC and section 3/4 of POCSO Act and sentenced to undergo R.I. for 20 years, 10 years & 10 years with fine of Rs.10,000/-, Rs.5,000/- & Rs.10,000/- respectively with default stipulations.

Learned counsel for the appellant has submitted that his previous application was recently dismissed on merits on 04.11.2022. While taking to the prosecution story it is submitted that incident had taken place on 15.1.2018, whereas sub-section (3) of Section 376 of I.P.C. became part of the statute

book pursuant to amendment with effect from 11.8.2018. Thus, under Article 20 of the Constitution of India, this sub-section (3) of Section 376 of PC cannot be a reason to convict the appellant for committing gang rape. The prosecutrix has filed an affidavit before this Court supporting the case of the appellant. The determination of age by the court below is erroneous. The appellant has remained in custody for a period of four years. Thus, the Signature Not Verified SAN

remaining jail sentence of the appellant may be suspended. Digitally signed by RAJESH MAMTANI Date: 2023.03.20 10:38:34 IST

Prayer of the appellant is opposed by the learned Government Advocate

on the basis of objection.

It is seen that this Court passed a detailed order on 04.11.2022 and despite no objection by the prosecutrix to allow the application of appellant for suspension of sentence, it was dismissed. The operative reason for declining relief is positive DNA report against the appellant. Even if the sub-section (3) of section 376 of IPC relating to gang rape is not pressed into service, it is still a case of rape and the appellant is held guilty for rape by the court below.

Considering the heinous nature of crime and DNA report, at this stage, no case is made out for suspension of sentence of the appellant.

Accordingly, I.A.No.No.5246/2023 is dismissed.

                                          (SUJOY PAUL)                                         (SMT. ANJULI PALO)
                                             JUDGE                                                   JUDGE

                                     RM




Signature Not Verified
  SAN




Digitally signed by RAJESH MAMTANI
Date: 2023.03.20 10:38:34 IST