Madhya Pradesh High Court
Rajesh Kumar Gupta vs The State Of Madhya Pradesh on 16 March, 2023
Author: Sujoy Paul
Bench: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRIMINAL APPEAL No.10099 of 2022
(RAJESH KUMAR GUPTA Vs. THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 16-03-2023
Ms. Namrata K. Agrawal - Advocate for the appellant.
Mr. Yogesh Dhande - Government Advocate for the
respondents/State.
Heard on I.A.No.20752 of 2022, which is the first application for suspension of sentence and grant of bail filed under Section 389(1) of the Cr.P.C. on behalf of appellant Rajesh Gupta.
The appellant has filed this Criminal Appeal being aggrieved by the judgment of conviction and sentence dated 07.09.2022 passed by Special Judge, "Protection of Children from Sexual Offences Act, 2012", Sidhi, District Sidhi (M.P.) in Special Case No.ST/16/2020, whereby the appellant has been convicted under Sections 5/6 of the Protection of Children from Sexual Offences Act, 2012, Sections 352, 363 and 366 of the IPC and 3(1)(w)(i) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and sentenced to undergo R.I. for 20 years with fine of Rs.5,000/-, R.I. for 3 months, R.I. for 3 years with fine of Rs.1,000/-, R.I. for 7 years with fine of Rs.2,000/- and R.I. for 3 years with fine of Rs.1,000/- respectively with default stipulations.
Learned counsel for the appellant submits that on the date of incident, prosecutrix was major but learned trial Court has erred in computing the age of prosecutrix on the basis of average which is not 2 permissible in law. Prosecutrix has not made any hue and cry while she was taken on motorcycle by the accused persons as alleged by the prosecution. Statement of prosecutrix could not be recorded because she died due to hanging within ten days of the incident. DNA report is also negative with respect to the present appellant and prosecution has failed to prove the common intention of the present appellant of causing rape with the prosecutrix and there is no evidence that appellant has committed sexual offence intentionaly due to the fact that prosecutrix is a member of SC/ST community, therefore, offence under Section 3(1) (w)(i) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act is not made out.
Learned counsel for the appellant submits that prosecution has failed to prove the case against the appellant and learned trial Court has erred in law and also on facts while convicting the present appellant. Learned counsel for the appellant in support of his arguments has placed reliance on the judgment of Om Prakash vs. State of Haryana reported in 2011 (14) SCC 309. Learned counsel for the appellant also submits that the appellant is in custody since the date of his arrest i.e. 27.02.2020 and submits that this appeal is of the year 2022 and there is no possibility of early hearing of this appeal in near future, hence, prays for suspension of remaining jail sentence and grant of bail to appellant.
Per contra, learned counsel for the respondent/State opposed the prayer and submits that trial Court has passed the judgment after proper appreciation of evidence that came on record and has rightly held the appellant guilty, hence, prays for rejection of application for suspension of sentence and grant of bail.
3We have heard the learned counsel for the parties at length and perused the record and also gone through the citations placed by the learned counsel for the appellant.
As per First Information Report (Ex.P-15), the date and time of incident is from 23.02.2020 at around 5:00 P.M. to 24.02.2020 at around 4:00 A.M. and FIR was lodged on 25.02.2020 at 3:00 P.M. The name of appellant was mentioned in the FIR which was lodged by the prosecutrix herself. The statement of prosecutrix recorded under Section 161 of the Cr.P.C. (Ex.P-17) on 27.02.2020 in which she stated against the appellant. Prosecutrix died due to suicide on 08.03.2020 by hanging. Though, the DNA report is not positive against the appellant but looking to the overt act of the present appellant, in our considered opinion, it is not a fit case for suspension of sentence and grant of bail of the present appellant at this stage.
In view of the aforesaid, IA No.20752 of 2022 stands rejected.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
DPS
DHEERAJ PRATAP SINGH
2023.03.20 11:43:05 +05'30'