Mukesh Daheriya vs State Of Madhya Pradesh
2021 Latest Caselaw 8674 MP

                                                                      1                              CRA-5599-2019
                                             The High Court Of Madhya Pradesh
                                                      CRA No. 5599 of 2019
                                                      (MUKESH DAHERIYA Vs STATE OF MADHYA PRADESH)


                                    Jabalpur, Dated : 13-12-2021
                                            Shri Balram Koshta, Advocate for the appellant.

                                            Shri Vinod Tiwari, Panel Lawyer for the respondent-State.

Heard on admission.

Appeal is admitted for hearing.

Heard on I.A.No. 12421 /2019 (first application), filed by the

appellant under Section 389(1) of the Cr.P.C. for suspension of sentence and grant of bail.

Accused/appellant has been convicted vide impugned judgment dated 10/10/2018 passed by learned 4th Upper Sessions Judge/Special Judge (POCSO), Sehore, district Sehore (M.P.) in S.C. No.93/2016 under Section (2-i-n) of IPC and has been sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.500/-, Section 450 of IPC and has been sentenced to undergo rigorous imprisonment for 5 years with fine of Rs.250/-with default stipulations.

A s per prosecution story, on 03/08/2016, the prosecutrix, aged about 16 years lodged the report. It is alleged by the prosecutrix that on 15/10/2014, the appellant-accused committed intercourse with her, and from time to time the appellant-accused committed intercourse with her once in a week. Thereafter, she became pregnant and disclosed all the incident to her mother.

Learned counsel for the appellant-accused submits that learned trial Court committed grave error to convict and sentence to the appellant/accused. It is not proved that at the time of incident the prosecutrix was below 18 years. Smt. Nirmala (PW-6) is the teacher who deposed before the trial Court that the date of birth of the Signature Not Verified SAN

Digitally signed by KUNDAN SHARMA Date: 2021.12.14 11:11:27 IST 2 CRA-5599-2019 prosecutrix is 15/05/1999 but it is an admitted fact that she has no knowledge what is the source of information of date of birth of the prosecutrix. PW-2 is the mother of prosecutrix. She did not disclose the date of birth of the prosecutrix. The prosecutrix herself admitted this fact that her mother lodged a false report against the appellant-accused.

Doctor Shashi Apolkar (PW-1) has examined the prosectrix. She found that secondary sexual charector of prosecutrix is well developed, due to this, the prosecutrix may be above 18 years. It is a matter of consent. The prosecutrix did not disclose the incident immediately to any person. She herself admitted this fact that she was in relation with the appellant- accused for two years, thus, no case is made out against the appellant- a c c us e d . There are material contradictions and omissions in the evidence of prosecution witnesses. The appellant-accused has served 6 years sentence out of 10 years. This appeal is of year 2017. It will take time for final hearing. In support of his contention, learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Saudan Singh Vs. State of Uttar Pradesh in Special Leave to Appeal (Crl.) No. 4633/2021. It is opined by Hon'ble the Apex Court that "there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail." There is fair chance to succeed in the appeal. Under these circumstances, if the sentence of the appellant/accused is not suspended, purpose to file this appeal will be futile. Hence, prayer is made for suspension of execution of jail sentence and grant of bail to the present accused/appellant.

Learned counsel for the respondent-State opposes the same submitting that the impugned judgment of conviction and order of Signature Not Verified SAN sentence is based on proper appreciation of oral as well as documentary Digitally signed by KUNDAN SHARMA Date: 2021.12.14 11:11:27 IST 3 CRA-5599-2019 evidence and the appellant has committed grave offence. Therefore, sentence of the appellant should not be suspended.

Hearing arguments of both the parties and the facts that the age of prosecutrix is disputed, the prosecutrix did not disclosed the incident immediately to any person due to this she may be consenting party in this incident, the appellant has served 6 years sentence out of 10 years, this appeal is of year 2019, it will take time for final hearing, so, without commenting anything on the merits of the case, I.A.No.12421/2019 is allowed.

It is ordered that subject to payment of fine amount, if not already

deposited, the execution of jail sentence of accused/appellant-Mukesh Daheriya shall remain suspended during the pendency of this appeal and he shall be released on bail on his furnishing personal bond for a sum of Rs.50,000/-(Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the trial Court on 08.03.2022 and thereafter on all other such subsequent dates, as may be fixed by the trial Court in this regard.

In case, accused/appellant is found absent on any date fixed by the trial Court then the said Court shall be free to issue and execute warrant of arrest without referring the matter to this Court, provided the Registry of this Court is kept informed.

List this matter for final hearing in due course. C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

kundan

Signature Not Verified SAN

Digitally signed by KUNDAN SHARMA Date: 2021.12.14 11:11:27 IST