Madhya Pradesh High Court
Ishwar vs The State Of Madhya Pradesh on 7 January, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
1 CRA-6194-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 6194 of 2019
(ISHWAR Vs THE STATE OF MADHYA PRADESH )
Dated : 07-01-2025
Shri Ritu Raj Bhatnagar - Advocate for the appellant.
Shri Sonal Gupta - Addl. Advocate General for the respondent/State.
Heard on I.A.No. 6501/2022 which is first application under Section
389(1) of the Cr.P.C. for suspension of sentence filed on behalf of appellant -
Ishwar s/o Pursingh Sondhiya Rajput.
02. Appellant has been convicted vide judgment dated 18.06.2019
passed by the learned Additional Sessions Judge, Garoth, District Mandsaur
in S.T.No. 185/2018 and sentenced as under :
In default of
Convicted U/Sec. Sentenced to Fine
payment of fine
363 of IPC 5 Years RI Rs. 1000/- 1 months RI
363 of IPC 5 Years RI Rs. 1000/- 1 months RI
376(2)(N) of IPC 10 Years RI Rs. 2000/- 2 months RI
376(3) of IPC Life imprisonment Rs. 2000/- 2 months RI
344 of IPC 1 Year RI Rs. 1000/- 1 months RI
03. As per the case of the prosecution, on 10.03.2018 uncle of the
prosecutrix lodged a missing complaint about the prosecutrix at Police
Station Garoth. After her recovery on 18.05.2018, prosecutrix stated that
the present appellant along with co-accused Kripal Singh and Sodan Singh
forcibly abducted her and thereafter appellant committed rape upon her. On
the basis of her statement, offence was registered. In her medical
examination, the hymen was found ruptured however, no sign of immediate
rape was found.
2 CRA-6194-2019
04. Learned counsel for the appellant submits that appellant has been
convicted under Section 376(2)(N) of the IPC and sentenced to undergo RI
for 10 years. However, he has wrongly been convicted under Section 376(3)
of the IPC which came in the statute on 21.04.2018. There is no direct
evidence by the prosecutrix or the doctor as to whether rape was committed
after 21.04.2018. Therefore, conviction under Section 376(3) of the IPC and
sentence to undergo life imprisonment are not sustainable. Further, out of
the other two co-accused persons against whom there is allegation of
abduction, Sodan Singh has been acquitted, therefore it is not a case of
abduction but a case of consent. Appellant is aged about 20 years having no
criminal antecedent. He has undergone about 6 years of jail sentence.
Appeal is of the year 2019 and its final disposal will take considerable time.
Hence, in such circumstances prayer is made for suspension of the jail
sentence and grant of bail.
05. Learned AAG appearing for the respondent / State opposes the
application and prays for its rejection on the ground that as per the
matriculation marksheet, prosecutrix was aged 15 years and 9 months at the
time of incident. She has deposed against appellant in the Court.
06. Considering the facts and circumstances of the case and arguments
advanced by learned counsel for the parties, without commenting on the
merits of the case, this Court is of the considered opinion that the application
for suspension of custodial sentence filed on behalf of the appellant deserves
to be allowed.
07. Accordingly, I.A.No.6501/2022 is allowed and the execution of
3 CRA-6194-2019
remaining jail sentence of the appellant is hereby suspended till the final
disposal of this appeal. It is directed that appellant - Ishwar be released on
bail subject to depositing the fine amount, if not already deposited and upon
furnishing a personal bond in the sum of Rs.20,000/- (Rupees Twenty
Thousand Only) with one solvent surety of the like amount to the satisfaction
of the trial Court, with a further direction to appear before the Registry of
this Court on 26.03.2025 and on such other dates, as may be fixed by the
Registry of this Court in this regard during pendency of this appeal.
List for final hearing in due course.
Certified copy, as per rules.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
vidya
