Madhya Pradesh High Court
Sanju Kushwah vs The State Of Madhya Pradesh on 21 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 790 of 2024
(SANJU KUSHWAH Vs THE STATE OF MADHYA PRADESH)
Dated : 21-05-2024
Shri S.S.Rajput - Advocate for the appellant.
Dr. Anjali Gyanani - Public Prosecutor for the respondent/ State.
Heard on IA No.816 of 2024, which is the first application under
Section 389 (1) of CrPC filed on behalf of appellant - Sanju Kushwaha for
suspension of sentence and grant of bail.
2.Present appellant stood convicted und er Section 3/4(2) of the
Protection of Children from Sexual Offences Act, 2012 and sentenced to
undergo 20 years rigorous imprisonment with fine of Rs.10,000/- with default
stipulations vide judgment dated 14.12.2023 passed by the Second Additional
Sessions Judge and Special Judge, Ganj Basoda, Distt. Vidisha in Special
Sessions Trial No.27 of 2022.
3.Prosecution case in brief is that before two months from the date of
incident, uncle (Mausaji) of the prosecutrix had expired and her aunt had called
her to reside in the village along with her. She had been residing in the house of
her aunt at village Lakhakhedi for last one month. The appellant who was also
of the same village used to come at the house of her aunt and the prosecutrix
knew him. On 18.3.2022 at about 11 pm when she was coming after answering
the call of nature, appellant caught hold of her hand and by closing her mouth
took her in the field and committed rape with her. Thereafter appellant
threatened her to kill if she narrated the incident to anyone and fled away. Son
of her aunt came while searching her and took her to the home where she
narrated the incident to her aunt and father. On the next day, she lodged the
report along with her father at police Station, Nateran, on which crime No.65 of
2022 was registered under Sections 376, 506 of IPC. Matter was investigated.
After completing investigation, police filed Challan. Thereafter, the case was
committed for trial to the Special Court. The Special Court upon evaluation of
evidence placed on record has convicted and sentenced present appellant as
referred above.
4.Learned Counsel for the appellant submits that trial Court has not
appreciated the evidence in correct perspective. The prosecutrix at the time of
offence was more than 18 years of age. To prove the age of the prosecutrix,
copy of admission register has been exhibited as (Ex.P/9), however, the said
document contains overwriting and Sonsam Rambhagat (PW-6), Headmaster of
the concerned school, has admitted that such entry is not related to the
prosecutrix. The prosecutrix has also admitted in her cross-examination that she
is above 18 years of age. The story of the prosecution also appears to be
improbable as DNA report does not support the case of the prosecution. In
vaginal slide very low Y- Chromosome STR DNA profile has been found and
DNA report is positive in respect of underwear of the prosecutrix which has
been created afterwards to implicate the appellant falsely in the crime. He was
on bail during trial but he did not misuse the liberty so granted. The appeal is of
the year 2024 and there is no likelihood of early hearing of this appeal in near
future. The appellant is ready to abide by all the terms and conditions imposed
by this Court. On these grounds, learned Counsel prays for suspension of
sentence and grant of bail to appellant.
5.Per contra, learned counsel for the State opposed the application by
SOODAN PRASAD submitting that DNA report is positive in respect of underwear of the
prosecutrix on which DNA of the appellant/accused was found proved as per
Ex.P/19 and so far as overwriting on admission register (Ex.P/9) is concerned,
a proper explanation in that regard is on record. Prosecutrix (PW-1), her father
(PW-2) and her aunt (PW-3) have supported the story of prosecution in totality.
On these grounds, learned counsel prayed for dismissal of the application.
6 . Having heard learned counsel for the parties and perusal of record,
regard being had to overwriting in admission register (Ex.P/9) and that in vaginal
slide of the prosecutrix DNA profile of the appellant has not been found proved
as per Ex.P/19, coupled with the evidence came on record and the fact that
during trial appellant remained in custody from 19.3.2022 to 01.12.2022 and
thereafter from the date of judgment he is in custody and the appeal being of
the year 2024 is not likely to be decided in near further, we are of the view that
appellant - Sanju Kushwah is entitled to the benefit of suspension of sentence
and grant of bail.
7.Accordingly, I.A.No. 816 of 2024 stands allowed and it is directed
that the jail sentence of appellant Sanju Kushwah shall remain suspended during
pendency of the present appeal and he shall be released on bail subject to
verification of the factum of depositing the fine amount and on his furnishing a
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 the Trial Court.
8.Appellant is directed to appear before the Registry of this Court first
on 23.09.2024 and on other subsequent dates as may be fixed in this behalf.
9.Accordingly, the said IA stands allowed and disposed of.
10.Observations on facts, if any, are only for the purpose of deciding the
Signature Notinstant
VerifiedI.A. and shall have no bearing on the merits of the appeal.
Signed by: MADHU
SOODAN PRASAD
Signing time: 28-05-2024 Certified copy as per rules.
02:11:24 AM
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
ms/-
