Madhya Pradesh High Court
Hifajat vs The State Of Madhya Pradesh on 16 August, 2021
Author: Subodh Abhyankar
1 CRA No.4066-2018
THE HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.4066-2018
( Hifajat Vs. State of M.P.)
Indore, Dated: 16/08/2021
Shri Mohd. Imran Khan, learned counsel for the appellant.
Shri Shashwat Seth, learned counsel for the respondent/State.
Heard on I.A.No.2517/2021, which is the fourth repeat application
for suspension of sentence of the appellant filed under Section 389(1) of the
Cr.P.C.
The appellant has been convicted and sentenced as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of fine
363 IPC 5 Years RI 2,000/- 6 Months RI
366-A IPC 5 Years RI 2,000/- 6 Months RI
366-(2)(I) IPC 10 Years RI 6,000/- 1 year RI.
(N)
Appellant's earlier application for suspension of sentence has been
dismissed on merit.
Counsel for the appellant has submitted that the appellant is in jail
since 22.5.2018 and the final conclusion of the appeal is likely to take a
long time. Counsel has also brought on record a copy of the judgment
delivered on 28.8.2019 by the Special Judge (under Protection of Children
from Sexual Offence Act) Mandleshwar (WN) in S.T. No.183/2018 wherein
the appellant, who was tried under Sections 366, 366-A of the IPC read with
Sections 7 /8 of the Protection of Children from Sexual Offence Act, 2012
has been acquitted from the offence as the aforesaid case was instituted
against the appellant by none other than the prosecutrix in the present case
and in that case also she has not supported the prosecution case. Counsel
has submitted that in that case the FIR was lodged on 18.3.2017, but in the
present case the FIR was lodged on 14.3.2016. It is further submitted that
the age of the prosecutrix is disputed and in the present case the age of the
prosecutrix has been considered as doubtful. Even though the said incident
took place after one year of the present case. Thus, it is submitted that
looking to the period of incarceration and the fact that the age of the
prosecutrix has been disputed, the application be allowed. It is also
submitted that the prosecutrix herself has turned hostile in court.
Counsel for the respondent/State on the other has opposed the prayer
and it is submitted that looking to the earlier order of dismissal on merit, no
case for suspension of sentence is made out.
Having considered the rival submissions, on perusal of the record and
also considering the copy of the judgment dated 28.8.2019 passed in S.T.
No.183/2018 wherein also the appellant was tried for abduction of the
prosecutrix, but he has been acquitted considering the fact that the age of
the prosecutrix could not be proved by the prosecution, this Court finds that
in the present case also as the age of the prosecutrix has been disputed it can
be decided finally. At this juncture, under these facts and circumstances of
the case, without expressing any opinion on merits of the case, IA
No.2517/2021 is allowed and it is directed that upon depositing fine amount
and on furnishing a personal bond by the appellant in the sum of
Rs.50,000/- (Rupees Fifty Thousand only) with a solvent surety in the like
amount to the satisfaction of the learned trial Court, for his regular
appearance before concerned trial Court, the execution of the custodial
part of the sentence imposed against the appellant shall remain suspended,
till the final disposal of this appeal.
The appellant after being enlarged on bail, shall mark his presence
before the concerned trial Court on 10.12.2021 and on all such subsequent
dates, as may be fixed by the concerned Court in this regard.
List the appeal for final hearing in due course.
C. c. as per rules.
(Subodh Abhyankar)
Judge
moni
Digitally signed by MONI RAJU
Date: 2021.08.16 17:44:44 +05'30'
