IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR CRA No. 2205 of 2023 (SMT. SIMRAN @ GATHAN Vs THE STATE OF MADHYA PRADESH)

Dated : 03-07-2023 Shri Suresh Agarwal - Advocate for the appellant.

Dr. Anjali Gyanani - learned Public Prosecutor for the respondent/State.

Heard o n I.A.No.2871/2023, first application under Section 389(1)

Cr.P.C. for suspension of sentence and grant of bail moved on behalf of appellant Smt. Simran @ Gathan.

Appellant stands convicted under Section 389 of the IPC and 364-A of the IPC r/w Section 11/13 of the MPDVPK Act and sentenced to undergo ten years rigorous imprisonment with fine of Rs. 1000/- and imprisonment for life with a fine of Rs.2000/- with default stipulation vide judgment of conviction and order of sentence dated 10/01/2023 passed by Special Judge (MPDVPK Act), District Shivpuri (M.P.) in SC Doct No. 32/2021.

Learned counsel for the appellant Smt. Simran @ Gathan submits that impugned judgment is vitiated for the reason that charge against Section 364-A of the IPC was added on the date of judgment i.e. 10/01/2023 without according opportunity of hearing to the appellant. Initially, appellant was charged under Section 389 of the IPC and Section 11/13 of the MPDVPK Act, 1981.

Learned counsel for the appellant further assailed the impugned judgment on the ground that testimony of Rajbahadur Singh Chauhan (P.W.2) who is complainant in the matter remained unchallenged because right of cross examination was closed on first day of evidence itself without according reasonable opportunity. The appellant could not challenge the order regarding closure of right of cross examination as Rajbahadur Singh Chauhan (P.W.2) had died. Therefore, the learned Trial Court has committed error in convicting the appellant on the basis of unchallenged testimony of Rajbahadur Singh Chauhan (P.W.2).

Learned counsel for the appellant also submits that appellant is falsely implicated in the matter and the first information report was lodged after delay of 11 days on a concocted story. No plausible explanation is available for delay in reporting the incident.

Learned counsel for the appellant further submits that it was alleged that a ring, chain made of gold and Rs. 1,50,000/- were looted from complainant Rajbahadur Singh Chauhan (P.W.2) and pieces of gold chain was recovered at the instance of appellant. No test identification parade was conducted during the investigation. The seized pieces of gold chain was not produced and identified before the Court by complainant Rajbahadur Singh Chauhan (P.W.2).

Learned counsel for the appellant further submits that even if the testimony of complainant Rajbahadur Singh Chauhan (P.W.2) is taken into consideration, without cross examination thereof, Rajbahadur Singh Chauhan (P.W.2) has stated that appellant Simran @ Gathan took him to the place of incident. After she left the spot, three unknown persons snatched gold chain, gold ring and Rs. 1,50,000/- and fled away. Thus, appellant was not present at the place of incident when gold ring, gold chain and Rs. 1,50,000/- was forcefully snatched from complainant. The learned Trial court has committed an error in convicting the appellant for extortion and robbery and also abduction for ransom. The call details of communication between the appellant and complainant Rajbahadur Singh have also not been proved. Appellant is in jail incarceration about two years and no criminal antecedent has been reported against her and she is aged about 24 years. On these grounds, appellant prayed for suspension of sentence and grant of bail.

Per contra, learned counsel for the respondent-State opposes the application for suspension of sentence and grant of bail on the ground that Rajbahadur Singh Chauhan (P.W.2) has specifically stated about direct involvement of the appellant in the alleged offence. Appellant took the complainant to the place of incident on false pretext of showing plot for sale. She further submits that despite providing opportunity of cross ex