Madhya Pradesh High Court
Shailendra @ Bholu vs The State Of Madhya Pradesh on 24 November, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 9443 of 2023
(SHAILENDRA @ BHOLU Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 24-11-2023
Shri Dhirendra Singh Niranjan - Advocate for the appellant.
Shri A.K.Nirankari - Public Prosecutor for respondent No.1/State.
Order on appeal.
Heard learned counsel for the accused/appellant and counsel for the State
and perused the record.
This Criminal Appeal under Section 374 of CrPC is directed against the
judgment of conviction and sentence dated 07.06.2023 passed by Special Judge
(POCSO Act), Guna in Sessions Trial No.105/2020.
Order on I.A. No. 20836/2023.
This first application filed by the appellant under Section 389(1) of
Cr.P.C. for suspension of sentence and grant of bail to the sole appellant-
Shailendra @ Bholu, arising out of judgment dated 07.06.2023 delivered in
S.T.No.105/2020 passed by the Special Judge, Guna in connection with Crime
No.167/2019 registered at Police Station Bhonti, District Shivpuri.
The accused/appellant has been convicted under Section 363 of IPC and
sentenced to suffer R.I. for 5 years with fine of Rs.1,000/- and under Section
366 of IPC and sentenced to suffer RI for 7 years with fine of Rs.2,000/- and
under Section 5/6 of POCSO Act and sentenced to suffer RI for 20 years with
fine of Rs.2,000/-, with default stipulations.
Learned counsel for the accused/appellant submits that during the
pendency of trial, appellant was on bail and he did not misuse his liberty. He
has been falsely implicated in the case due to rivalry. There was enmity between
the present appellant and uncle and father of the complainant herself. DNA does
not tally with the accused. Although the motorcycle of present appellant was
recovered from the spot but it is alleged that co-accused Virendra took his
motorcycle on the pretext of illness of his brother. There is no eye witness to
the incident. Case is based on the sole testimony of the victim, FIR was lodged
after the meeting of appellant-accused and uncle, thus, there is no explanation of
delay in FIR. It is further submitted that accused remained in jail about six
months during the trial and since the date of judgment, he is languishing in jail.
Disposal of appeal will take time and if he is released on bail, he will not misuse
the liberty. Thus, it is prayed that jail sentence of the appellant may be
suspended.
Per contra, learned counsel for the State strongly opposed the
application by submitting that accused is named in FIR, his motorcycle was
involved in the incident and it was recovered while the accused was fleeing
away towards Jhansi. So far as non-availability of eye witness is concerned, it is
well settled law that on the sole testimony of victim can be a basis of conviction
of the appellant. Matching the DNA of Virendra with the victim shows that
occurrence took place and no doubt regarding the incident appears. Accused is
named in FIR and in her statement on oath, victim supported the prosecution
case. There is no major contradiction to doubt of incident. Hence, prays for
rejection of this suspension of sentence.
Considering the facts and circumstances of the case and the manner in
which the incident took place and rival submissions made by the counsel for the
parties, statement of victim on the oath, finding DNA with the other accused
who is said to be present on the spot alongwith present accused-appellant, we
do not find this a fit case to release accused on bail. Hence, this instant
suspension application is hereby rejected.
Record of Court below has already been received.
Registry is directed to prepare the paper book within 15 working days.
Matter is directed to be listed in the month of March, 2024 for final
hearing.
(RAJENDRA KUMAR-IV) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
Adnan
