Madhya Pradesh High Court
Lapai Kushwah vs The State Of Madhya Pradesh on 11 October, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 2880 of 2020
(LAPAI KUSHWAH Vs THE STATE OF MADHYA PRADESH)
Dated : 11-10-2023
Shri Tapendra Sharma - Advocate for the appellant.
Ms. Kuldeep Singh - Public Prosecutor for the respondent-State.
Heard o n IA No.18366 of 2023, second application under Section
389(1) Cr. P.C. filed on behalf of the appellant seeking suspension of sentence
and grant of bail.
Appellant stands convicted under Section 376(3) read with Section 3(2)
(v) ST and ST Act and sentenced to undergo life imprisonment with fine of
Rs.20,000/-, with default stipulations respectively vide judgment of conviction
and order of sentence dated 26-02-2020 passed by Special Judge SC & ST
(Atrocities Act), District- Shivpuri in Special Case No.29/2019.
Appellant so far has undergone 4 years and 3 months' incarceration.
As per prosecution story, on 26.12.2018 in the afternoon at about 3 O'
Clock while prosecutrix with her five year old niece was laying cow dungs near
her house, the appellant came and gagged her mouth. Thereafter, he dragged her
to the field of his elder brother and threw her beneath a lemon tree, where he
forcibly committed rape. On raising alarm, her brother came to rescue, by that
time, the appellant had run away. On such allegation, FIR was lodged. Upon
completion of investigation, challan was filed. Case was committed for
sessions trial. The Sessions Court on appreciation of evidence placed on
record convicted and sentenced the present appellant as mentioned above.
Learned counsel for the appellant while taking exception to the impugned
judgment has made submissions that appellant has been falsely implicated in
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 12-10-2023
10:04:04 AM
the case. There is no DNA report on record. The MLC does not suggest any
external or internal injuries on the body of the prosecutrix. In fact, the aforesaid
incident was concocted due to enmity between the appellant (upper caste) and
that of the brother of the prosecutrix (lower caste). It is further contended that
appellant has already suffered about four years and three months' of jail
incarceration. The appeal is of the year 2020 and there is no likelihood of early
hearing of the appeal. Under such circumstances, prayer is made for suspension
of sentence and grant of bail to the appellant.
Per contra, Shri Kuldeep Singh, learned Public Prosecutor opposed the
application while supporting the impugned judgment with the submission that
the impugned judgment is based upon the evidence placed on record. Hence,
no exception can be taken in the matter of suspension of sentence and grant of
bail to the appellant. However, learned counsel fairly submits that DNA report
was not available before the Trial Court and PW-8 Dr. Nida Khan in her report
has not found any internal or external injuries on the body of the prosecutrix.
However, prosecutrix herself has been consistent in her statement under Section
161 of CrPC and occular evidence in Court did not support the prosecution
case.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions touching merits of the case but
looking to the period of incarceration suffered by the present appellant and the
fact that appeal is of the year 2020 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
Signature Not Verified
remain suspended and he shall be released on bail, subject to verification of
Signed by: AVINASH
BHARGAV
Signing time: 12-10-2023
10:04:04 AM
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 12-12-2023 and
on other subsequent dates as may be fixed by Office in this behalf.
Accordingly, aforesaid I.A.No.18366 of 2023 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) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
Avi
Signature Not Verified
Signed by: AVINASH
BHARGAV
Signing time: 12-10-2023
10:04:04 AM
