Madhya Pradesh High Court
Shiv Kumar vs The State Of Madhya Pradesh on 29 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 3366 of 2018
(SHIV KUMAR AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 29-05-2024
Ms. Renu Gupta - Advocate for appellant No.2.
Mr. V.P. Singh - Advocate for the appellant No.3.
Mr. S.K. Kashyap - Government Advocate for the respondent - State.
Heard on I.A. No.11283 of 2024, an application under Section 389(1) of
the Cr.P.C. for suspension of sentence and grant of bail to appellant no.2
Vishal Singh Netam.
Also heard on I.A. No.24303 of 2023, an application under Section
389(1) of the Cr.P.C. for suspension of sentence and grant of bail to appellant
no.3 Pooran Meshram.
Mr. S.K. Kashyap adopts objections filed at earlier point of time. He
submitted that none of their earlier applications for suspension of sentence and
grant of bail of the appellants have been decided on merits.
The appellants are aggrieved of the judgment dated 04.04.2018, passed
by learned Special Judge constituted under the provisions of Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Mandla (M.P.), in
SPL S.T. No.200112 of 2016, whereby the appellant no.2, stands convicted for
the offence under Section 376(gha) of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for 20 years with fine of Rs.5,000/-, under
Section 342 of the Indian Penal Code, he is sentenced to undergo rigorous
imprisonment for 01 year with fine of Rs.1,000/-, and also under Section 8 of
the Protection of Children from Sexual Offences Act, 2012, he is sentenced to
rigorous undergo imprisonment for 03 years with fine of Rs.1,000/- with default
stipulations. Appellant no.3 stands convicted for the offence under Section
376(gha) of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for 20 years with fine of Rs.5,000/-, under Section 342 of the
Indian Penal Code, he is sentenced to undergo rigorous imprisonment for 01
year with fine of Rs.1,000/-, and also under Section 506-II of the Indian Penal
Code, he is sentenced to rigorous undergo imprisonment for 02 years with fine
of Rs.1,000/- with default stipulations.
Prosecution case in short is that on 06.04.2016, prosecutrix was a minor
and her date of birth is 09.09.1999. At about 03:00 pm, she was going to the
field of Arvind for harvesting the crop and when she reached the house of the
accused Pooran Singh, then Pooran Singh called her. When she reached the
house of Pooran Singh, then other co-accused persons were sitting there.
Pooran asked that he tempted her married to Shiv Kumar Yadav, who was
sitting there. When she started running, then Vishal Singh caught hold of her
and tried to outrage her modesty. Thereafter, she was pushed inside the room
of Pooran where accused Shiv Kumar committed rape violating her privacy
after closing the door.
It is submitted that appellants are innocent and they have falsely been
implicated in this case. They have been convicted by the learned Special Judge
under Section 376(d) of IPC. It is submitted that ingredients of Section 376(d)
of the Indian Penal Code are not attracted to the facts and circumstances,
inasmuch as, they have not been said to be accused of commission of gang
rape and they were not acting in furtherance of a common intention.
Reading from the cross-examination of the prosecutrix, it is submitted
that there are many omissions in the story of the prosecution. She has admitted
that she was going to the field of Arvind for harvesting the crops along with her
brother Mannu Maravi, but later on, she improvised her statement that Mannu is
weak from mind. He is able to cut the wheat crop but he is not able to tie nor he
can take it on his head.
She has admitted that there is house of Prem Singh at a some distance of
the house of Pooran and Roop Singh. She has admitted that she had neither
lodged any complaint nor shouted for help when she was going to the house of
Pooran nor this fact was reported by her brother Mannu who was accompanied
her. It is also pointed out that there are several other houses in the locality, but
she did not cry for help. She has admitted that accused Shivkumar Yadav had
dropped her after the incident when she had gone to Boriya to meet her 'Bua'
and thereafter, had visited the Chandehra to meet her sister-in-law Chirounjabai.
She has admitted that while she was at the house of Chirounjabai, then her uncle
Tiwarilal had taken Police from Tikariya Police Station had come to her. She
has admitted that her father was also there. It is pointed out that there was no
missing person report of the prosecutrix who was missing for about 2 days. It
is unusual conduct on the part of the parents of the prosecutrix that they did not
lodge any report especially when she has admitted that her brother Mannu was
accompanied her. Medical examination was found negative. Hence, prayer is
made to suspend the remaining jail sentence of the appellants and to release
them on bail.
Learned Public Prosecutor has vehemently opposed the prayer on the
ground that it is a case of gang rape and prays for dismissal of the applications
filed by the appellants.
After hearing learned counsel for the parties and taking into consideration
the fact that appeal is going to take time, we are of the considered opinion that
this is a fit case to suspend the remaining jail sentence of the appellants and to
release them on bail. Accordingly, I.A. Nos.11283 of 2024, 24303 of 2023 are
hereby allowed.
It is directed that on depositing the fine amount, if not already deposited
and on furnishing a personal bond to the tune of Rs.50,000/- (Rupees Fifty
Thousand Only) each with two solvent sureties each in the like amount to the
satisfaction of the Trial Court for their appearance before the Trial Court on
19.12.2024 and on such other dates as may be fixed by the Trial Court, which
shall not be more than 2 times in a year, the execution of remaining part of the
jail sentence imposed upon appellants shall remain suspended and they shall be
released on bail till final disposal of this appeal.
I.A. Nos.11283 of 2024, 24303 of 2023 are allowed & disposed of.
Certified copy as per rules.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
