Madhya Pradesh High Court
Kushal Sharma vs The State Of Madhya Pradesh on 7 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1 CRA-5309-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 5309 of 2020
(KUSHAL SHARMA AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS )
Dated : 07-08-2024
Shri Divya Hasija, learned counsel for appellant No.2-Rahul Kumar.
Shri Manas Mani Verma, learned Public Prosecutor for the
respondent/State.
Ms. Omee Jaiswal, learned counsel for the Respondent No.2/victim.
Heard on I.A. No9058/2024, which is third application for suspension
of sentence and grant of bail to appellant No.2-Rahul Kumar.
This appeal is filed by the appellants being aggrieved of the judgment
dated 15/09/2020 passed by the learned 18th Additional Sessions
Judge/Special Judge, POCSO Act, 2012, Bhopal in Sessions Trial
No.643/2018, whereby the appellant No.2 stands convicted for the offence
under Sections 376AB of the Indian Penal Code and sentenced to undergo
imprisonment for life along with fine of Rs.1,000/- and also under Section
376(2)(n) of IPC/5(L)/6 of Protection of Children from Sexual Offences Act,
2012 and sentenced to undergo rigorous imprisonment for 10 years along
with fine of Rs.1,000/- with default stipulations.
Learned counsel for the appellant No.2 submits that in 164 statement,
prosecutrix has not said anything about appellant No.2-Rahul Kumar. It is
submitted that he is pressing this application on behalf of appellant No.2-
Rahul Kumar because he is a young man and now prosecutrix who was
having fascination towards Rahul is willing to marry him. Rahul is also
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agreeable to marry her, therefore, this application for suspension of sentence
may be allowed.
Shri Divya Hasija, learned counsel for appellant No.2, submits that
under compulsion appellant No.2-Rahul Kumar is willing to marry with
prosecutrix. Reading from Ex.P/1 which is statement of prosecutrix under
Section 164 of Cr.P.C., it is submitted that prosecutrix never alleged
anything against the present appellant-Rahul Kumar. Reading from the
evidence of prosecutrix (PW-1) and MLC (Ex.P/2), it is submitted that the
MLC does not corroborate the allegations against the present appellant.
It is also submitted by Shri Divya Hasija, learned counsel for
appellant-Rahul Kumar that appellant has no nexus with the family of
prosecutrix nor with the family of Foofaji i.e. Kaushal Sharma. It is also
submitted that appellant No.2-Rahul Kumar is a student of engineering.
Thus, it is submitted that it is a case of false implication out of
suspicion, therefore, the application for suspension of sentence may be
allowed.
Ms.Omee Jaiswal, learned counsel for the victim/prosecutrix submits
that she has no objection if this 3rd application for suspension of sentence on
behalf of present appellant No.2-Rahul Kumar is allowed.
Shri Manas Mani Verma, learned Public Prosecutrix, in his turn,
submits that FIR is Ex.P/4. In the FIR prosecutrix has taken name of not
only present appellant No.2-Rahul Kumar along with Kaushal Sharma but
also that of one Avinash. This FIR is available on record as Ex.P/4.
In 164 statement (Ex.P/1) prosecutrix has narrated the same story as is
3 CRA-5309-2020
mentioned in the FIR. In the statement of prosecutrix she has clearly
answered queries of the Court and has said that Kaushal Sharma was putting
his finger in the private part of the prosecutrix. She has also said that
appellant No.2-Rahul Kumar was putting his penis in the vagina. Then in
the statement of the prosecutrix recorded before the Court, she has also
deposed that appellant No.2-Rahul Kumar used to violate her privacy by
touching her private parts.
This aspect is clear from para-19 of cross-examination of the
prosecutrix. Hence, submission made by Shri Hasija, learned counsel for the
appellant No.2 that MLC (Ex.P/2) does not corroborate the allegation of
violation of privacy is not made out in view of the amended definition of
'rape' as contained in Section 375 of IPC. Section 375(b) (c) of IPC
provides that -
"(b) if a man inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or anus of a
woman or makes her to do so with him or any other person;
(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or any other person;
or such woman or makes her to do so with him or any other
person or then that act being against her will without her consent
will constitute a rape.
In view of such facts, at this stage, we are not impressed with the
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arguments put forth by Shri Divya Hasija, learned counsel for the appellant
No.2-Rahul Kumar, therefore, I.A. No.9058/2024 fails and the same is
hereby dismissed.
List this appeal for final hearing in part-B of the cause list as per its
turn and seniority.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
ts
