Makhan @ Devendra vs The State Of Madhya Pradesh
2021 Latest Caselaw 4840 MP

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  HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                     Cr. A. No.4121 of 2018
               Makhan @ Devendra Vs. State of M.P.

Indore, Dated:- 31/08/2021
      Shri Akash Rathi, Counsel for the appellant - Makhan @

Devendra S/o Shivsagar Sutar.

      Shri Awdesh Polekar, Counsel for the respondent/State.

Heard on IA No.16517/2021, fourth application under Section

389 (1) of the Code of Criminal Procedure, 1973 for suspension of

jail sentence and grant of bail filed on behalf of the appellant.

The present appellant has been convicted and sentenced by II

Additional Sessions Judge, Rajgarh, District - Rajgarh (Biaora) (MP)

in Sessions trial No.134/2016 vide judgment dated 10.05.2018, as

under: -

         Conviction                        Sentence
   Section      Act          RI           Fine     Imprisonment in
                                         amount      lieu of fine
   363       IPC         5 years        Rs.2,000/- 6 months RI
   366       IPC         7 years        Rs.3,000/- 6 months RI
   376(2)    IPC         10 years       Rs.10,000/ 01 years RI
   (n)                                  -
   5 and 6 POCSO 10 years          Rs.5,000/- 6 months RI

His earlier two applications for suspension of sentence have

already been dismissed as withdrawn, however, his third application

i.e., I.A. No.1478/2019, which was an application for temporary

suspension of sentence on account of demise of his father has been

allowed by this Court vide order dated 21.02.2019.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.4121 of 2018 Makhan @ Devendra Vs. State of M.P.

Counsel for the appellant has submitted that the appellant has

suffered more than five years of incarceration out of the 10 years of

sentence awarded to him. It is further submitted that the prosecutrix

was a consenting party as she has travelled along with the appellant

from 23.02.2016 to various places including Bhopal, Sagar, Chennai

and Ujjain and was recovered on 13.03.2016.

Counsel has further submitted that so far as the age of the

prosecutrix is concerned, although the trial Court has observed that

she was 16 years and 8 months, however, the Scholar Register relied

upon by the prosecution cannot be given credence in the absence of

any date of birth certificate. Counsel has further submitted that the

final disposal of the appeal is likely to take sufficient long time,

therefore, the application be allowed.

Counsel for the respondent/State, on the other hand, has

opposed the prayer.

Having considered rival submissions and on perusal of the

record including the statement of the prosecutrix (PW-5) as also the

other material, this Court finds that case is arguable and since the

final disposal of the appeal is likely to take sufficient long time, this

Court is of the considered opinion that the application for suspension

of custodial sentence deserves to be allowed.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. No.4121 of 2018 Makhan @ Devendra Vs. State of M.P.

Accordingly, without expressing any opinion on merits of the

case, IA No.16517/2021 is allowed and it is directed that 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 / her 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 13.12.2021 and on all

such subsequent dates, as may be fixed by the concerned Court in this

regard.

Since the appeal is already admitted for final hearing.

List the same for final hearing in due course.

C. c. as per rules.

(SUBODH ABHYANKAR) JUDGE Pankaj Digitally signed by PANKAJ PANDEY Date: 2021.08.31 17:07:31 +05'30'