Madhya Pradesh High Court
Pappu vs The State Of Madhya Pradesh on 1 March, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 8620 of 2023
(PAPPU Vs THE STATE OF MADHYA PRADESH)
Dated : 01-03-2024
Shri Raj Kumar Singh Kushwaha- Advocate for appellant.
Shri Lokendra Shrivastava- Public Prosecutor for respondent- State.
Heard on the question of admission.
Record of the trial Court has been received.
Being arguable, the appeal is admitted for final hearing.
IA No. 12254 of 2023, first application under Section under Section
389(1) Cr.P.C. moved on behalf of appellant Pappu seeking suspension of
sentence and grant of bail.
Appellant stood convicted under Section 366 of IPC and sentenced to
undergo three years rigorous imprisonment with fine of Rs.100/- and sentenced
to undergo ten years rigorous imprisonment with fine of Rs.200/- under Section
376(1) of IPC with default stipulations, vid e judgment of conviction and
sentence dated 15-06-2023 passed by Additional Sessions Judge, Lateri,
District Vidisha in Sessions Trial No. 17 of 2021.
Learned Counsel for the appellant submits that prosecutrix in her
statement recorded under Section 164 of CrPC did not allege rape by appellant.
Evidence of the prosecutrix (PW7) is full of inconsistencies. She had given
different version of incident in her examination-in-chief and cross-examination.
Initially, prosecutrix did not state about rape in her examination-in-chief but later
on, in Para 3 on suggestion of the prosecution, she stated that appellant-
accused has committed rape on her. In para 11 of cross-examination, she states
that when she was conscious, accused had not committed rape on her, when
she fell unconscious, then rape was committed. She specifically denied her
earlier statement that she fell unconscious after accused committed rape with
her. Learned Counsel further submits that mother-in-law of prosecutrix (PW8)
and husband (PW10) also did not support prosecution. Learned Counsel
further contends that no definite opinion was given by Medical Officer- Dr.
Vinita Agrawal (PW9). She had stated that no internal injuries were found on
private part of prosecutrix. Learned Counsel referring to DNA Examination
Report (Ex.P16), submits that DNA profile taken from source material of
prosecutrix did not match with ''Y'' Chromosome STR profile taken from
source material of appellant Pappu. Learned Trial Court committed error in
convicting the appellant ignoring aforementioned important aspects of the
matter.
Learned Counsel further contends that the impugned judgment passed
by learned Trial Court is based on assumption, conjectures and surmises. The
learned Trial Court has committed an error in convicting and sentencing the
present appellant without appreciating prosecution evidence properly. There are
material contradictions and omissions in the evidence of witnesses. Appellant
has already undergone custody of almost nine months. Fine amount has already
been deposited by appellant. There is no likelihood of early hearing of appeal in
n e a r future. On these grounds, learned Counsel prays that execution of
remaining jail sentence of appellant may be suspended and he may be enlarged
on bail.
Per contra, learned Counsel for respondent State opposes the
application and prayed for its rejection.
Upon hearing learned Counsel for the parties, but without commenting
upon rival contentions touching merits of the case, this Court is of the view that
application deserves to be allowed. It is, accordingly directed that execution of
remaining jail sentence of appellant shall remain suspended during pendency of
this appeal and he shall be enlarged on bail subject to furnishing personal bond
in the sum of Rs.1,00,000/- (Rupees one lac only) with one solvent surety in
the like amount to the satisfaction of Trial Court for compliance with following
conditions:-
(1). The appellant shall deposit the amount of fine (if not deposited)
forthwith;
(2). The appellant shall appear before the Trial Court on 22.04.2024
and on such further dates as may be directed by the Trial Court;
(3). The appellant shall ensure hearing of the appeal on the date fixed
for such hearing and shall also ensure proper legal representation on his behalf,
on the date notified for hearing.
In case of breach of any of the aforementioned conditions, this order
granting suspension of sentence shall become ineffective.
The Trial Court shall be authorized to grant exemption from attendance
t o the appellant on any date, on sufficient cause being shown [Chapter XIII
Rule 42 Sub-Rule 2 of the M.P. High Court Rules, 2008].
Where the appellant does not appear on the date of his appearance
before the Trial Court and no sufficient cause for non-appearance is shown, the
Trial Court shall be authorized to issue non-bailable/bailable warrants to secure
his attendance under intimation to the Registry of High Court. The Trial Court
shall also proceed under Section 446 of CrPC against such appellant and his
surety without any reference to this Court and without any impediment of the
order granting bail. [Chapter XIII Rule 42 Sub-Rule 3 of M.P. High Court
Rules, 2008].
On arrest/surrender in compliance with the warrant, the appellant shall be
forwarded in custody to undergo sentence of imprisonment under intimation to
the Registry of this Court.
Accordingly, IA No.12254 of 2023 stands allowed and disposed of.
List for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
MKB
