Madhya Pradesh High Court
Nakul Yadav vs The State Of Madhya Pradesh on 4 October, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 4709 of 2023
(NAKUL YADAV Vs THE STATE OF MADHYA PRADESH)
Dated : 04-10-2023
Shri J.P. Kushwaha - Advocate for the appellant.
Ms. Anjali Gyanani - Public Prosecutor for the respondent-State.
Heard o n IA No.6023 of 2023, first application under Section 389(1)
Cr. P.C. filed o n behalf of the appellant seeking suspension of sentence and
grant of bail.
Appellant stands convicted under Section 363 of IPC and sentenced to
undergo 03 years' RI with fine of Rs.3,000/-, Section 366 of IPC and sentenced
to undergo 07 years' RI with fine of Rs.5,000/- and Section 3/4 of POCSO Act
and sentenced to undergo 20 years RI with fine of Rs.10,000/- with default
stipulations respectively vide judgment of conviction and order of sentence
dated 16-02-2023 passed by Special Judge (POCSO Act), and Second
Additional Sessions Judge, District- Datia in Special Case No.24/2021.
Appellant so far has undergone 13 months and 10 days incarceration
including the period suffered during trial.
As per prosecution story, mother of the prosecutrix has lodged an FIR
to the effect that on 08-07-2021 at about 09:00 in the night, after having dinner
she slept in the room and her daughter (prosecutrix) slept in courtyard. In the
morning of 09-07-2021 at about 05:00 when she woke-up she did not find her
daughter in the courtyard. Having been searched extensively by the family
members, prosecutrix could not be traced. Thereafter, during investigation,
prosecutrix was recovered on 10-07-2021. Her statements under Sections 161
and 164 of Cr.P.C. were recorded and DNA sample was collected and sent for
test. On completion of investigation, challan was filed and the case was
committed to the Sessions Court for trial. The Sessions Court upon critical
evaluation of the evidence placed on record convicted and sentenced the
appellant as aforesaid.
Learned counsel for the appellant while taking exception to the impugned
judgment has made submissions that appellant has been falsely implicated in
the case. In her statement recorded under Section 164 of Cr.P.C. before the
Magistrate, prosecutrix has belied the story of prosecution as well as in her
ocular evidence during trial, she has stated that statement of 161 Cr.P.C was at
the dictate of the police as discussed in para 37 of the impugned judgment.
Besides, there was no injury internal or external in the medical report. The trial
Court did not appreciate the evidence in correct perspective and convicted
error in convicting the appellant. Under such circumstances, prayer is made for
suspension of sentence and grant of bail to the appellant.
Per contra, learned counsel for the respondent-State opposed the
application while supporting the impugned judgment with the submission that in
the teeth of the fact that prosecutrix was minor at the time of incident and DNA
test was found positive, no exception can be taken in the matter of suspension
of sentence and grant of bail to the appellant.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions touching merits of the case, in the
obtaining facts and circumstances of the case and the fact that appeal is of the
year 2023 and there is no likelihood of early hearing of this appeal in near future,
we are of the view that appellant deserves to be and is accordingly extended the
benefit of suspension of sentence and grant of bail.
Accordingly, it is directed that the jail sentence of present appellant shall
remain suspended and he shall be released on bail, subject to verification of
amount of fine being deposited and on his furnishing a personal bond in the
sum of Rs.1,50,000/- (Rupees One Lac and Fifty Thousand 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 06-12-2023 and
on other subsequent dates as may be fixed by Office in this behalf.
Accordingly, aforesaid I.A. stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of disposal of the
application for suspension of sentence and shall have no hearing on the merits
of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
vc
VARSHA CHATURVEDI
2023.10.05 10:58:49
+05'30'
