Rajesh vs The State Of Madhya Pradesh
2025 Latest Caselaw 531 MP

Madhya Pradesh High Court

Rajesh vs The State Of Madhya Pradesh on 8 May, 2025

Author: Anand Pathak

Bench: Anand Pathak

                                                                 1                            CRA-12076-2022
                                          IN THE HIGH COURT OF MADHYA PRADESH
                                                        AT GWALIOR
                                                        CRA No. 12076 of 2022
                                                   (RAJESH Vs THE STATE OF MADHYA PRADESH )



                          Dated : 08-05-2025
                                Shri Prabal Solanki- Advocate for appellant.
                                Shri B.P.S. Chauhan- Government Advocate for respondent/State.

Shri D.S. Rajawat- Advocate for complainant.

1. Heard on IA No.26502/2024, an application under Section 430(1) of BNSS, 2023 moved on behalf of appellant- Rajesh Kushwah seeking suspension

of jail sentence and grant of bail.

2. Appellant has been convicted under Section 3/4(2) of POCSO Act and sentenced to undergo twenty years' RI with fine of Rs. 3,000/- with default stipulation vide impugned judgment of conviction and order of sentence dated 17.10.2022 passed by Special Judge, District Shivpuri in Special Case No.06/2021.

3. As per the prosecution case, on 23.11.2020, the victim aged around 13 years and three months, along with her father reached Police Station and submitted a report that on the said date at around 09:00 PM, he was sitting in front of his house and warming his hands in front of fire. At that time, Rajesh (appellant) came

and told him to bring sweets (laddu) from the house of one Sonu. When he went there, sweets were not available. When he was returning to his house, he met Rajesh near the hand pump and caught him and, thereafter, took him under the culvert of Shiv Colony where accused Rajesh made him lie down and removed his pants and underwear by gagging his mouth and penetrating on the private part of victim. When the victim screamed, his parents and the people of neighborhood came. Thereafter, accused Rajesh fled away from the spot. On such allegations,

2 CRA-12076-2022

FIR vide Crime No.374/2020 for offence punishable under Sections 377 of IPC and Section 3/4 of POCSO Act was registered. Matter was investigated. Statements of witnesses were recorded. Appellant was arrested. Relevant seizures were made. After completion of investigation and other formalities, Charge Sheet has been filed before the competent Court. Charges were framed. Trial was started. After conclusion of trial, the Special Court found the appellant guilty of the aforesaid offence and sentenced him accordingly as stated above.

4. It is contended by learned Counsel for appellant that the Trial Court has passed the impugned judgment of conviction and order of sentence without considering the facts and material on record and without appreciating the evidence in proper perspective. The judgment passed by the trial Court is illegal, arbitrary and unsustainable in the eyes of law. Learned counsel for appellant further

submitted that the age of victim is more than 18 years on the date of alleged incident. The prosecution has failed to prove his age in accordance with law and no DNA report has been produced by prosecution. It is further submitted that the act of appellant covers under Section 7 of the POCSO Act which is punishable under Section 8 of the POCSO Act. The trial Court has committed an error in holding the appellant guilty under Section 3/4 of the POCSO Act. There is no penetration found on the private part of the victim. Appellant has already suffered almost four years and six months of jail sentence as pre and post trial confinement. Hearing of appeal shall take some time. Appellant shall abide by all the conditions as imposed by this Court. Hence, prayed for suspension of sentence and grant of bail.

5. On the other hand, learned Counsel for the State as well as complainant supported the impugned judgment and referred the evidence of Dr. Tapish

3 CRA-12076-2022 Shivhare (PW-5), who in his evidence deposed that all the injuries sustained by victim appeared to be caused by sexual abuse. It is further submitted that victim is below the age of 14 years on the date of incident. Victim (PW-1) himself, his mother (PW-2) and father (PW-3) supported the prosecution version and their evidence remained intact in their cross-examination, therefore, offence committed by appellant is squarely covered under Section 3/4 of POCSO Act. Therefore, the appellant is not entitled for suspension of jail sentence and prayed for rejection of application.

6. Heard learned Counsel for the parties and perused the record.

7. After hearing the contentions made by learned counsel for both the parties and considering the evidence of Victim (PW-1), his mother (PW-2) and father (PW-3) as well as Dr. Tapish Shivhare (PW-5), so also considering the provisions of Section 3/4 of POCSO Act, this Court does not find it to be a fit case for suspension of jail sentence and grant of bail to appellant. Accordingly, application fails and is hereby rejected.

8. Observations on facts, if any, are only for the purpose of deciding the instant I.A. and shall have no bearing on the merits of the appeal.

                                  (ANAND PATHAK)                                        (HIRDESH)
                                      JUDGE                                               JUDGE
                          MKB