Madhya Pradesh High Court
Nek Singh Kushwah @ Gappe vs The State Of Madhya Pradesh on 21 September, 2022
Author: Anand Pathak
Bench: Anand Pathak
1
HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.2517/2022
(Nek Singh Kushwah alias Gappe Vs. The State of Madhya Pradesh)
Gwalior Bench : Dated : 21.09.2022
Shri A.K.Jain, learned counsel for the appellant.
Shri Sushant Tiwari, learned Public Prosecutor for the
respondent/State.
Heard on I.A.No.4250/2022, first application under Section 389 (1) of Cr.P.C. for suspension of sentence and grant of bail filed on behalf of appellant.
This criminal appeal assails the judgment dated 04.01.2022 passed by the Additional Sessions Judge, Lahar, District Bhind in Special Case No.04/2020 whereby appellant has been convicted as under:-
Sections Act Imprisonment Fine 363 IPC 03 years Rs.1000/- with stipulation 366 IPC 05 years Rs.1000/- with stipulation 376 (1) IPC 10 years Rs.5000/- with stipulation 3/4 POCSO Act 10 years Rs.5000/- with stipulation
It is the submission of learned counsel for appellant that trial Court erred in convicting and awarding the jail sentence of appellant. Appellant suffered 4 years and 03 months' incarceration so far out of total 10 years' jail sentence. It is further submitted that statement of 2 HIGH COURT OF MADHYA PRADESH Criminal Appeal No.2517/2022 (Nek Singh Kushwah alias Gappe Vs. The State of Madhya Pradesh) prosecutrix recorded under Section 161 of Cr.P.C. and as well as the Court's statement are not implicative qua present appellant. She nowhere referred the allegations of rape. Still prosecution proceeded with the trial and trial court erred in convicting the appellant. He fairly submitted that DNA report stands positive and against the appellant but looking to the testimony of witness who was in fact major, trial Court ignored the same, therefore, her consent is to be treated as free will. Hearing of the appeal shall take some time. The appellant is ready to abide by all the terms and conditions that may be imposed by this Court. Counsel for the appellant prays for suspension of jail sentence and grant of bail.
Learned counsel for the respondent/State opposed the prayer and prayed for rejection of the appeal.
Heard the learned counsel for the parties and perused the documents appended thereto.
Considering the submissions advanced by the learned counsel for the parties, this Court intends to allow this application. I.A. No.4250/2022 is allowed and it is ordered that on furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent 3 HIGH COURT OF MADHYA PRADESH Criminal Appeal No.2517/2022 (Nek Singh Kushwah alias Gappe Vs. The State of Madhya Pradesh) surety of the like amount to the satisfaction of the concerned trial Court, jail sentence of appellant shall remain suspended till disposal of this appeal and he be released on bail. The appellant is further directed to remain present before the Registry of this Court on 15.11.2022 and thereafter, on such subsequent dates as may be fixed by the Registry.
Appellant shall not be source of embarrassment and harassment to the complainant party in any manner and shall not move in their vicinity.
I.A.No.4250/2022 stands allowed and disposed of. Copy of this order be sent to the trial Court concerned for compliance.
Certified copy as per rules.
(Anand Pathak)
AK/- Judge
ANAND KUMAR
2022.09.22
17:45:07 +05'30'