Mukesh vs The State Of Madhya Pradesh
2021 Latest Caselaw 4488 MP

                                                                               1                             CRA-1587-2021
                                                    The High Court Of Madhya Pradesh
                                                               CRA-1587-2021

(MUKESH Vs THE STATE OF MADHYA PRADESH)

Indore, Dated : 18-08-2021 Shri Vikas Yadav, learned counsel for the appellant. Shri Sameer Verma, Panel Lawyer for State.

Heard on the question of admission.

The appeal is admitted for final hearing.

Also heard on I.A.No.4789 of 2021, an application for suspension of

jail sentence of the appellant who has been convicted by Special Judge, SC/ST (Prevention of Atrocities) Act, district Dewas for the offence punishable under Sections 9(m) read Section 10 of POCSO Act, has been sentenced to undergo 5 years RI with fine of Rs.600/-. In default of payment of fine 1 month additional RI.

Learned counsel for the appellant submits that this provision under which the appellant has been convicted is not part of the charges which have been framed against the appellant. The charges had been framed under Section 377 of IPC and Section 3B/4 of POCSO Act and also under Section

3(2)(v) of SC/ST (Prevention of Atrocities) Act. The appellant was acquitted from the charges under Section 377 of IPC and under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, however he was convicted and sentenced under Section 9(m)/10 of POCSO Act and sentenced to 5 years RI with fine of Rs.600/-, with default stipulation.

Learned counsel for the appellant submits that the appellant is in jail for a period of more than one year. He further submits that case does not fall under the provisions of Section 9(m)/10 of POCSO Act because there is no proof regarding aggravated sexual assault.

Learned counsel for the appellant has drawn Court's attention to para 13 and 14 of the impugned judgment in which specific conclusion has been Signature Not VerifiedDigitally signed by SAN SHAILESH given that the stick which had been allegedly inserted in the anus did not result MAHADEV SUKHDEVE Date: 2021.08.18 18:02:36 IST 2 CRA-1587-2021 in any injury to the anus but the injuries were found in the nature of abrasion beside the anus. Thus, the provisions of Section 9(m)/10 of POCSO Act are not attracted as per learned counsel for the appellant.

Learned counsel has also drawn Court's attention to the fact that for the aggravated sexual assault to take place, in the first place there has to be sexual assault to be proved and for sexual assault to be proved as per Section

7 of the POCSO Act, the imperatively, physical contact has to be made and when as per the facts of the case, the stick has been inserted, it cannot be considered to be physical contact by the appellant with the victim.

Heard the learned Panel Lawyer for the State. Considered.

There is substance in the submissions of the learned counsel for the appellant, without commenting on merits of the case, I.A.No.4789/2021 is allowed and it is directed that on depositing the fine amount and upon appellant's furnishing a personal bond to the tune of Rs.50,000/- with one solvent surety in the like amount to the satisfaction of the trial court, the substantive jail sentence of the appellant shall remain suspended till the final disposal of the appeal and he shall be released on bail for his regular appearance before the Registry of this Court on 30.9.2021 and all other subsequent dates as may be fixed in this behalf by the Office.

List for final hearing in due course.

C.c. as per rules.

(SHAILENDRA SHUKLA) JUDGE

SS/-

Signature Not Verified
              VerifiedDigitally
                       Digitally signed by
  SAN                  SHAILESH
                       MAHADEV
                       SUKHDEVE
                       Date: 2021.08.18
                       18:02:36 IST