Madhya Pradesh High Court
Kailash @ Banti Vijayvargiya vs State Of Madhya Pradesh on 24 March, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 CRA-251-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 251 of 2025
(KAILASH @ BANTI VIJAYVARGIYA Vs STATE OF MADHYA PRADESH AND OTHERS )
Dated : 24-03-2025
Shri Neeraj Kumar Soni - advocate for the appellant.
Shri H. S. Rathore - Government Advocate for the respondents State.
Shri Shashank Shrivastava- Advocate for the complainant.
Heard on I.A. No.159/2025, first application under Section 430 (1) of
the BNSS, 2023 for suspension of sentence of the sole appellant Kailash @
Banti Vijayvarigya S/o Rameshchandra Vijayvargiya.
2. The appellant has been convicted under Sections 363, 366, 376
(3) of the IPC and Section 4 read with Section 3 of the POCSO Act, 2012
and has been sentenced for three years, five years, twenty years, twenty years
rigorous imprisonment and fine with default stipulations vide judgment dated
19.12.2024 in Special Case No. 114 of 2020 by Second Additional Sessions
Judge and Special Judge, POCSO Act, 2012, Indore for committing the
aforesaid offences with victim (PW-1) aged 13 years three months on
29.01.2020 regarding which first information report was lodged in the
intervening of 29 and 30.01.2020 at 00.15 AM.
3. This application has been preferred on the ground that appellant
has good prima facie case on merit and is likely to succeed in the present
appeal. The appeal takes much time to come up for final hearing and
balance of convenience is also lies in favour of the appellant. He pressed on
Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714, Umesh Chandra Vs.
2 CRA-251-2025
State of Rajasthan , AIR 1982 SC 1057, State of Madhya Pradesh Vs.
Munna @ Shambhoo Nath, 2016 (1) SCC 696.
4. Counsel representing for the victim has not opposed the
application, but Counsel for the State has vehementely opposed the
application by filing the reply through Document No. 1446 of 2025 on the
ground that date of birth of the victim (PW-1) is proved to be 26.01.2007
through relevant record of School and she was 13 years three months on the
date of incident and offence has been proved and penetrative sexual assault
with victim and involvement of appellant Kailash has been proved, by
scientific evidence in the form of DNA finger print profile (Exhibit-P-42).
The victim have supported the prosecution case up to her statement under
Section 164 of the CrPC recorded by JMFC on 30.01.2020 as Exhibit-P-11,
but later on in the pressure of appellant accused victim PW-1 and her parents
turned hostile because due to their poor financial status. Hence, learned
Counsel for the State accordingly prayed for rejection of the application.
5. The Apex Court in the Hemudan Nanbha Gadhvi Vs. State of
Gujarat, AIR 2018 SC 4760 has held that if the witnesses becomes hostile to
subvert the judicial process, the court shall not stand as a mute spectator.
6. In this case, a victim (PW-1) was pursuing her studies in VIII
standard and trial Court has assessed her age appreciating the documents
received from the respective School. On record there is a copy of Birth
Certificate issued by Madhya Pradesh Government as Exhibit-P-24 in which
the date of birth is 26.01.2007 registered on 16.02.2007. Samples were
taken on 30.01.2020 and samples were collected vide DNA profile of
3 CRA-251-2025
appellant accused has been matched. Vide Exhibit-P-42 factum of economic
compulsion is shown from the stand taken by the statement of the appellant
as DW-1 that contributed for not supporting the victim (PW-1) and her
parents at the trial stage. The appellant victim (PW-1) was 13 years 3
months old and offence was committed when she approached him for
protection, who was 40 years old at that time. Physical injuries were also
present on the body of the child victim.
7. While considering plea for suspension of sentence, we should not
discuss the merits of the appeal. Nothing glaring or palpable has been
pointed out to us on the basis of which it could be said that the conviction on
the face of it is not sustainable in law.
8. Considering the aforesaid, in light of Hemudan Nanbha Gadhvi
(supra), we are not inclined to suspend the jail sentence of the appellant at
present.
Accordingly, I.A. No.159/2025 is rejected.
(SUSHRUT ARVIND DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
rashmi
