Madhya Pradesh High Court
Jitesh Lodhi vs The State Of Madhya Pradesh on 4 March, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 15215 of 2023
(JITESH LODHI Vs THE STATE OF MADHYA PRADESH)
Dated : 04-03-2024
Shri Vibhor Kumar Sahu, Advocate for the appellant.
Shri Shri Dheeraj Budholiya- Panel Lawyer 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.
Also heard on IA No.22357 of 2023, first application under Section
389(1) Cr.P.C. moved on behalf of appellant Jitesh Lodhi seeking suspension
of jail sentence and grant of bail.
Appellant stood convicted under Sections 363, 366-A of IPC, Section
3/4 (1) of the POCSO Act and sentenced to undergo two years' rigorous
imprisonment with fine of Rs.1,000/-, three months' rigorous imprisonment with
fine of Rs.1,000/- and ten years' rigorous imprisonment with fine of Rs.3,000/-
respectively with default stipulations vide judgment of conviction and sentence
dated 31-10-2023 passed by Special Judge (POCSO Act)/Second Additional
Judge to the Court of First Additional District & Sessions Judge, Ashok Nagar
in Special Sessions Case No.136 of 2020.
Learned Counsel for the appellant, in addition to the grounds mentioned
in the application, submits that there was no substantive and reliable evidence
with regard to age of victim. Learned trial Court concluded that victim was
minor merely on conjectures and surmises. The parents of victim could not
state the exact date of birth. Further, there are material inconsistencies in their
testimony with regard to age of victim. The learned Trial Court committed an
error in concluding that victim was minor at the time of incident.
Learned Counsel further contends that victim in her initial statement
recorded under Section 161 of CrPC (Ex.D1) and statement recorded under
Section 164 of CrPC before learned Judicial Magistrate, did not allege sexual
assault against appellant. Later, under pressure of the family members, victim
made allegations in supplementary statement. No positive DNA report is
available on record. Learned Trial Court ignored these important aspects of the
matter.
Learned Counsel also 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 the prosecution evidence properly. There
are material contradictions and omissions in the evidence of witnesses. The
appellant has already undergone custody of almost six months. No criminal
antecedent is reported against him. Fine amount has already been deposited.
There is no likelihood of early hearing of appeal in near 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 prays 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 Jitesh Lodhi 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.50,000/- (Rupees Fifty Thousand
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
to 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.22357 of 2023 stands allowed and disposed of.
List for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
MKB
