Madhya Pradesh High Court
Deepak Kushwah vs The State Of Madhya Pradesh on 1 May, 2023
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA NO. 221 of 2023
(DEEPAK KUSHWAH Vs STATE OF MADHYA PRADESH)
Dated : 01-05-2023
Per Justice Satyendra Kumar Singh
Shri Kiran Kumar - Advocate for appellant.
Ms. Anjali Gyanani - Public Prosecutor for respondent/State.
Heard on I.A. No.5306/2023, which is first application under
Section 389(1) of Cr.P.C. moved on behalf of appellant - Deepak
Kushwah seeking suspension of sentence and grant of bail.
Appellant stood convicted under Section 376(2)(n) of IPC and
Section 5(L) r/w 6 of Protection of Children from Sexual Offences Act,
2012 and sentenced to undergo Life Imprisonment with a fine of
Rs.50,000/- with default stipulation vide judgment of conviction and
order of sentence dated 10.11.2022, passed by Sessions Judge, Sheopur
(M.P.) in S.T. No.87/2019.
Learned Counsel for the appellant submits that it has been alleged
against the appellant that he along with co-accused Gajanand
kidnapped/abducted minor prosecutrix aged about 17 years and
repeatedly committed rape upon her. He submits that it is apparent from
the statement of the prosecutrix recorded under Section 164 of CrPC
that she herself voluntarily went with the appellant and remained in his
company for about two months in a rented accommodation and did not
raise any objection. The prosecution has failed to prove the fact that the
prosecutrix was minor at the time of incident as her father PW-1 in para
9 of his cross-examination admitted that the prosecutrix was born at his
house and she was admitted in a school by her mother. Prosecutrix's
mother PW-3 in para 3 of her cross-examination deposed that she is not
aware about the date of birth of the prosecutrix. Under these
circumstances, learned Trial Court committed error in finding the
prosecutrix minor at the time of incident. The impugned judgment
convicting the appellant is unsustainable. Learned counsel further
submits that the appellant has suffered till now incarceration of 7
months and 16 days and there is no likelihood of hearing of this appeal
in near future., therefore, his remaining period of sentence may be
suspended and he may be enlarged on bail.
Per contra, learned Public Prosecutor for the respondent/State
opposed the application while supporting the impugned judgment and
submits that as per school record, the prosecutrix was minor at the time
of incident. She in her statement recorded during trial has supported the
prosecution case which also finds support from the DNA report and
learned Trial Court has not committed any error in holding the appellant
guilty, therefore, he is not entitled for bail.
Heard the learned counsel for both the parties and perused the
record.
Having considered the rival submissions, material produced on
record specially with regard to the age of the prosecutrix and also
considering the statements of the prosecutrix recorded during
investigation as well as during trial and this appeal is of the year 2023
and there is no likelihood of early hearing of the appeal in near future
and without expressing any opinion on merits, the appellant deserves to
be extended the benefit of bail.
Accordingly, I.A. No.5306/2023 stands allowed and it is directed
that the jail sentence of appellant shall remain suspended during
pendency of present appeal and he shall be released on bail subject to
deposit of fine amount and 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 first on 04/07/2023 and on
other subsequent dates as may be fixed by the Registry 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) On violation of the conditions, State is free
to apply for cancellation of bail.
Accordingly, IA. No.5306/2023 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) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Abhi
Digitally signed by
ABHISHEK CHATURVEDI
Date: 2023.05.02
12:04:21 +05'30'
