Aarif vs The State Of Madhya Pradesh
2021 Latest Caselaw 8214 MP

                                                1
                                                                                      CRA No.5144/2021

               High Court of Madhya Pradesh, Jabalpur
                           Bench at Indore
            Criminal Appeal No.5144/2021
Indore, Dated 04.12.2021
         Shri A.S. Kutumbale, learned Senior Counsel along with Shri

Anurag Baijal, learned counsel for appellant Aarif s/o Ajim Khan.

         Shri Palash Choudhary, learned Panel Lawyer for the

respondent / State of Madhya Pradesh.

Heard on IA No.27755/2021, first 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

learned Special Judge (under POCSO Act, 2012) Dr. Ambedkar

Nagar, District Indore (MP) in Special Sessions Trial No.47/2019

vide judgment dated 16.07.2021, as under: -

                 Conviction                                Sentence
     Section              Act              RI        Fine amount      Imprisonment in lieu of fine
   323           IPC            6 months SI
   366-A         IPC            10 years            Rs.1,000/-        1 month additional RI
   376 (2) (n)   IPC            10 years            Rs.5,000/-        2 months additional RI
   506-II        IPC            3 years             Rs.1,000/-        1 month RI

Learned Senior Counsel appearing for the appellant has

submitted that the prosecutrix was major at the time of incident and

was a consenting party. It is submitted that in support of age of the

prosecutrix, only her mark sheet and scholar register have been filed

which in themselves cannot be taken to be the documents

demonstrating the true date of birth of the prosecutrix, as no date of

CRA No.5144/2021

birth certificate has been placed on record; and according to the

prosecution, the age of the prosecutrix is less then seventeen years.

So far as the consent of the prosecutrix is concerned, learned

Senior Counsel appearing for the appellant has drawn the attention of

this Court to various photographs of the prosecutrix and the appellant

proved as Ex.D/1 to D/14; and thus, it is submitted that the sentence

awarded to the appellant be suspended, as the final disposal of the

appeal is likely to take sufficiently long time.

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

opposed the prayer.

On due consideration of the rival submissions and on perusal

of the record including the statement of the prosecutrix, this Court

finds force with the contentions raised by the learned Senior Counsel

for the appellant and in the considered opinion of this Court, the

appellant has made out a case for grant of suspension of jail

sentence.

Accordingly, without expressing any opinion on merits of the

case, IA No.27755/2021 is allowed and it is directed that upon

depositing fine amount, if any, 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 / her regular appearance before

concerned trial Court, the execution of the custodial part of the

CRA No.5144/2021

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 /

her presence before the concerned trial Court on 20.04.2022 and on

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

this regard.

It is also observed that if the appellant (s) is found in any of

the criminal activities, after his release on bail / suspension of

sentence, then the present bail / suspension order shall stand

cancelled without further reference to this Court; and the State /

prosecution will be free to arrest the accused in the present case also.

Let the record (Physical) of the case from the concerned trial

Court be requisitioned, if not already received; and list thereafter for

admission.

C. c. as per rules.

(Subodh Abhyankar) Judge rcp

RAMESH CHANDRA PITHWE 2021.12.07 18:50:25 +05'30'