Mahesh vs The State Of Madhya Pradesh
2021 Latest Caselaw 7747 MP

                                                                     1                             CRA-1722-2018
                                            The High Court Of Madhya Pradesh
                                                     CRA No. 1722 of 2018
                                                        (MAHESH Vs THE STATE OF MADHYA PRADESH)

                                    26
                                    Jabalpur, Dated : 24-11-2021

                                          Shri Mithlesh Prasad Tripathi, Advocate for the appellant.
                                          Ms. Seema Jaiswal, Panel Lawyer for the respondent-State.

Record of the court below is available on record. Appeal is admitted for hearing.

Heard on I.A.No.491/2021, which is third application filed by the

accused/appellant, under section 389 (1) of Cr.P.C. for suspension of his jail sentence awarded by the Court of learned 3rd Addl. Sessions Judge, Burhanpur, M.P. in S.C. No. 61/2015 vide its judgment dated 08.02.2018 convicting the appellant/accused for the offences punishable under Section 376 (2)(f) of IPC and sentenced him to undergo R.I. for 10 years with a fine of Rs.10000/- with default stipulation, Section 506 of IPC and sentenced him to undergo R.I. for 3 years with fine of Rs. 5000/- with default stipulation, Section 3 r/w Section 4 of the POCSO Act, 2012 and has been sentenced to undergo R.I. for 10000/- with a fine of Rs. 10000/- with default stipulation

and Section 5(j)(ii) r/w Section 6 of the POCSO Act, 2012 and has been sentenced to undergo R.I. for 10 years with a fine of Rs. 10000/- with default stipulation. Earlier two applications were dismissed as withdrawn on dated 20.11.2018 and 28.08.2019 by this Court.

As per prosecution case, on dated 15.11.2015, prosecutrix aged 17 years lodged the report in the concerned police station against the appellant-accused. It is alleged by her that appellant-accused is a Trainer of Karate. Prosecutrix tooks training from the appellant-accused. Meanwhile, appellant-accused committed intercourse with her.

Learned counsel for the appellant-accused submits that learned trial Court committed grave error to convict and sentence of the appellant- Signature Not Verified

accused. Learned trial Court did not appreciate the evidence in perspective SAN

Digitally signed by PALLAVI SINHA Date: 2021.12.01 17:07:01 IST 2 CRA-1722-2018 way. Learned trial Court determined the age of prosecutrix on the basis of her mark-sheet and birth certificate, which is issued by Registrar. There is overwriting in the date of birth of prosecutrix in the birth certificate. So, this certificate is not reliable. During the trial, appellant-accused filed an application to call the Registrar, Multai, District-Betul to dispute this

certificate but learned trial Court dismissed his application. So, appellant- accused could not produce the evidence in this regard. Neither Principal nor any school teacher has been produced by the prosecution in regards of date of birth of prosecutrix. The mother of prosecutrix (PW-4) deposed before the trial Court that her marriage was solemnized 25 years ago. After one year 6 months, prosecutrix was born. So, the age of prosecutrix may be above 18 years at the time of incident. Apart from this, the evidence of prosecutrix is not wholly reliable. Mother of prosecutrix (PW-4) admitted this fact that prosecutrix went out of her house so many times without intimating to the parents. The sister of prosecutrix also deposed this fact that prosecutrix had gone to Bombay without the information of her parents. Prosecutrix has so many friends. Her mother (PW-4) admitted this fact that due to this, appellant-accused stopped to come his karate class. Due to this reason, prosecutrix became angry with the appellant-accused. Her mother admitted this fact that when prosecutrix became pregnant then she enquired the matter at that time also, prosecutrix did not disclose the name of the appellant- accused. Thereafter, he disclosed the name of appellant-accused. Apart from this, there are material contradictions and omissions in the statements of the witnesses. DNA report is not available on the record. Appellant-accused is in jail since 16.01.2015. So, he has served 6 years 11 months of jail sentence out of 10 years. There is every possibility to get success in this appeal. This appeal is of year 2018. It will take time for final disposal. There is no likelihood of his absconding and tampering with the evidence. In support of his contention, learned counsel for the appellant has relied upon the judgment Signature Not Verified SAN passed by the Hon'ble Supreme Court in the case of Saudan Singh Vs.

Digitally signed by PALLAVI SINHA Date: 2021.12.01 17:07:01 IST 3 CRA-1722-2018 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." Under the circumstances, if the execution of jail sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail to the present accused/ appellant.

Learned Panel Lawyer has opposed the application. Having considered the arguments advanced by learned counsel for the parties and looking to the evidence of the case, it appears that age of

prosecutrix is disputed, initially prosecutrix did not disclose the name of appellant-accused, prosecutrix used to go out of station without intimating her parents, appellant-accused is in jail since 16.01.2015, so he has served 6 years 11 months of jail sentence out of 10 years, this appeal is of the year 2018, so it will take time for final hearing, therefore, without commenting anything on the merit of the case, I.A. No.491/2021 is allowed.

It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant-Mahesh shall remain suspended during the pendency of this appeal and he be released on bail on his furnishing a 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 17.01.2022 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.

In case, the 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

Signature Not Verified arrest without referring the matter to this Court, provided the Registry of SAN

Digitally signed by PALLAVI SINHA Date: 2021.12.01 17:07:01 IST 4 CRA-1722-2018 this Court is kept informed.

List this matter for final hearing in due course, as per listing policy.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

Pallavi

Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.12.01 17:07:01 IST