Madhya Pradesh High Court
Mahesh Kushwaha vs The State Of Madhya Pradesh on 12 March, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 CRA-9495-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 9495 of 2024
(MAHESH KUSHWAHA Vs THE STATE OF MADHYA PRADESH )
Dated : 12-03-2025
Shri Sourabh Singh Thakur - learned counsel for the appellant.
Shri Akhilendra Singh - learned Government Advocate for the
respondent/State.
Shri G.K. Gautam - learned counsel for the objector.
Heard on IA No.29570/2024, which is first application filed under
Section 389(1) of Cr.P.C for suspension of jail sentence and grant of bail
moved on behalf of appellant - Mahesh Kushwaha.
Appellant has been convicted for commission of offence punishable
under Section 3/4 (2) of the Protection of Children from Sexual Offences
Act, 2012 and Section 506(II) of IPC and sentenced to undergo RI for 20
years and 1 year and to pay fine amount of Rs.2,000/- and Rs.500/- for each
offence respectively. Inspite of that appellant has also been convicted for
commission of offence punishable under Section 376(3) of IPC vide
judgment dated 27/07/2024 passed by Second Additional Judge to the Court
of Additional Sessions Judge, Lavkushnagar, District Chhatarpur in Special
Case No. 11/2022.
The prosecution case found to be proved is that on 17/10/2022 at
about 12:30 p.m., when the prosecutrix had gone to the house of appellant
for some sewing work, then appellant took her inside the room and
committed sexual intercourse with her. It is also alleged that the appellant
2 CRA-9495-2024
made the video clip of the alleged incident and he threatened the prosecutrix
that if she narrate the incident to anyone then he would viral the same on
social media. On the basis of aforesaid, alleged offence has been registered
against the appellant.
Learned counsel for the appellant submitted that the appellant is
innocent and he has falsely been implicated in the alleged incident due to
animosity. Age of the prosecutrix is disputed. FIR has been lodged after one
month of the alleged incident and no plausible explanation has been offered
by the prosecutrix in this regard. As per the testimony of the prosecutrix
(P.W. 1), appellant made video of the alleged incident, however, during
investigation, no video clip has been recovered. As per testimony of Dr.
Ayushi Singh (P.W. 5), she has not found any internal or external injury on
the person of the prosecutrix and she has failed to give any definite opinion
regarding commission of rape with the prosecutrix. Moreover so, testimony
of the prosecutrix is not corroborated by any medical evidence. FSL report
has not been produced by the prosecution. During trial appellant was on bail
and he did not misuse the liberty so granted to him. There are fair chances of
the success of this appeal and there is no possibility of early hearing of the
appeal in near future, therefore, if the custodial sentence of the appellant is
not suspended, then the purpose for filing this appeal will be frustrated.
Under these circumstances, learned counsel for the appellant prays for
suspension of custodial sentence and grant of bail to the appellant Mahesh
Kushwaha.
Learned counsel for the respondent/State as well as learned counsel for
3 CRA-9495-2024
the objector have opposed the application by contending that there is ample
evidence available on record to connect the appellant with the alleged
offence. Hence, no case for suspension of custodial sentence and grant of
bail to the appellant is made out.
We have heard learned counsel for the parties and perused the record.
Considering the aforesaid facts and circumstances of the case coupled
with the fact that FIR has been delayed by one month so also the fact that
testimony of the prosecutrix is not corroborated by any medical
evidence, but without expressing any opinion on the merits of the case, IA
No.29570/2024 is allowed.
It is directed that subject to depositing the entire fine amount, if not
already deposited, the substantive jail sentence of appellant Mahesh Kushaha
shall remain suspended till the final disposal of the appeal and he be released
on bail, on furnishing personal bond in the sum of Rs.50,000/- with one
solvent surety in the like amount to the satisfaction of trial Court, for his
appearance before the concerned trial Court firstly on 21.04.2025 and on
such other dates, as may be fixed by the said Court in this regard.
List the matter for final hearing in due course.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
skt
