Santosh Ojha vs The State Of Madhya Pradesh
2021 Latest Caselaw 4688 MP

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         THE HIGH COURT OF MADHYA PRADESH
                         Cr.A. No.3041/2021
               (Santosh Ojha & another Vs. State of M.P.)

Gwalior, Dated:-25/08/2021
      Shri Rishikesh Bohare, learned counsel for the appellants.

      Smt. Abha Mishra, learned Public Prosecutor for the

respondent/State.

I.A. No.25053/2021, an application for urgent hearing, is taken

up, considered and allowed for the reasons mentioned therein.

Also, heard on I.A.No.25054/2021, fourth application under

Section 389(1) of Cr.P.C. for suspension of jail sentence on behalf of

appellant No.2 - Narendra Ojha.

This criminal appeal has been filed against the judgment dated

17/03/2020 passed by Special Judge (POCSO Act), Guna, Distt. Guna

(M.P.) in Special Case No.130/2017 by which appellant No.2 has been

convicted as under:-

    Sections        Imprisonment          Fine              In default
 363 of IPC r/w        5 years RI       Rs.5,000/-          1 year RI
    16/17 of
  POCSO Act
  366-A of IPC         5 years RI       Rs.5,000/-          1 year RI
  r/w 16/17 of
   POCSO Act

It is submitted by learned counsel for appellant No.2 -

Narendra Ojha that the appellant has been wrongly convicted by the

trial Court. There are lots of contradictions and omissions in the

evidence of the prosecution witnesses. It is further submitted that

appellant No.2 is not the main accused of the case, rather as per

THE HIGH COURT OF MADHYA PRADESH Cr.A. No.3041/2021 (Santosh Ojha & another Vs. State of M.P.)

judgment of the trial Court wherein trial Court itself has observed that

appellant No.2 is not the main accused and he was not found guilty

for commission of offence under Sections 376/120-B of IPC. It is also

submitted that there is no allegation of commission of rape against

appellant No.2 and allegation against appellant No.2 is only of

transporting the girl by Alto car. The prosecutrix was major on the

date of incident as she has already admitted that she is a married lady

and at the time of marriage, she was major. Learned counsel for the

appellant submitted that in the case of Babloo Pasi Vs. State of

Jharkhand [(2008) 13 SCC 133], Birad Mal Singhvi Vs. Anand

Purohit [1988 Supp. SCC 604], Desh Raj Vs. Bodh Raj [AIR 2008

SC 632], it is held that if the entry in school register is not

reassembling with the birth certificate, then entries of school register

shall not be considered. In the present case, prosecutrix has herself

admitted the fact that she is major and trial Court has also held about

the aforesaid fact in paragraph 49 of its judgment. There is no

possibility of final hearing of this appeal in near future. Hence,

considering the aforesaid facts and total custody period of appellant

No.2, which is around six months, learned counsel prayed to suspend

the remaining jail sentence of appellant No.2. He further undertakes to

abide by all the terms and conditions of guidance, circulars and

directions issued by Central Government, State Government as well

THE HIGH COURT OF MADHYA PRADESH Cr.A. No.3041/2021 (Santosh Ojha & another Vs. State of M.P.)

as Local Administration regarding measures in respect of COVID-19

Pandemic and maintain hygiene in the vicinity while keeping physical

distancing.

Learned State counsel has vehemently opposed the application

and submitted that custody period of appellant No.2 - Narendra Ojha

is very short. Hence, prayed to reject this fourth application filed for

suspension of jail sentence of appellant No.2.

Heard learned counsel for the parties and perused the material

documents available on record.

On perusal of record available, it is apparent that total custody

period of appellant No.2 is around six months and the trial Court has

awarded the punishment of five years rigorous imprisonment with fine

of Rs.5,000/- for offence under Sections 363 & 366-A of IPC r/w

Sections 16/17 of POCSO Act. Therefore, considering the custody

period of appellant No.2, which is very short, this Court is not

inclined to suspend the jail sentence of appellant No.2- Narendra

Ojha.

Accordingly, I.A. No.25054/2021 is hereby dismissed.

List the case for final hearing in due course.

(Rajeev Kumar Shrivastava) Judge Shubhankar* Digitally signed by SHUBHANKAR MISHRA Date: 2021.08.25 17:41:49 +05'30'