Shubham Rathore vs The State Of Madhya Pradesh
2021 Latest Caselaw 7762 MP

                                                                    1                                CRA-5437-2021
                                           The High Court Of Madhya Pradesh
                                                    CRA No. 5437 of 2021
                                                  (SHUBHAM RATHORE Vs THE STATE OF MADHYA PRADESH)

                                    7
                                    Jabalpur, Dated : 24-11-2021

                                          Shri R.S. Rathore, Advocate for the appellant.
                                          Shri Lokesh Jain, 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.16544/2021, which is first 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 Addl. Sessions Judge, Banda, District Sagar (MP), in Spl. S.T.No.16/2020 vide its judgment dated 27/08/2021 convicting the appellant/accused for the offences punishable under Sections 354 of IPC, sentenced to undergo RI for 2 years with fine of Rs.1,000/-, and Section 7/8, sentenced to undergo RI for 4 years with fine of Rs.2,000/-, with

default stipulations.

As per prosecution case, on 22/02/2018, the appellant-accused caught the hand of the prosecutrix, aged 17 years and when she cried, the appellant-accused left her hand. Thereafter, the prosecutrix disclosed the incident to her parents and FIR was lodged.

Learned counsel for the accused/appellant submits that learned trial Court committed grave error in convicting and sentencing the accused/appellant. It is not proved that at the time of incident, the age of the prosecutrix was below 18 years. Samitt Jain (PW-3) deposed before the trial Court that the date of birth of the prosecutrix was 02/07/2000 at the time of incident. He admitted this fact that he Signature Not Verified

has no knowledge what is the source of information of date of birth SAN

Digitally signed by KUNDAN SHARMA Date: 2021.11.24 17:54:40 IST 2 CRA-5437-2021

of the prosecutrix. Mother and father of the prosecutrix did not disclose the date of birth of prosecutrix, due to this, it cannot be said that at the time of incident the prosecutrix was below the age of 18 years. Apart from this, it is alleged by the prosecutrix that accused caught hand of the prosecutrix, except this, there is no allegation

against the appellant-accused, therefore, no case is made out under Section 7/8 of POCSO Act against the appellant-accused. At the time of incident some dispute arose between both the parties, due to which, the appellant-accused has been falsely implicated in this case. There a r e material contradictions and omissions in the statement of the witnesses. The appellant/accused is aged about 24 years. He has not been previously convicted. There is every possibility to get success in this appeal. This appeal is of year 2021. It will take time for final disposal. The appellant-accused is in custody since 27/08/2021. There is no likelihood of his absconding and tampering with the evidence. 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 the fact that the age of the prosecutrix is disputed, this appeal is of the year 2021, the appellant-accused has not been previously convicted, this appeal will take time for final hearing, therefore, without commenting anything on the merit of the case, I.A. No.16544/2021 is allowed.

Signature Not Verified SAN It is ordered that subject to payment of fine amount, if not

Digitally signed by KUNDAN SHARMA Date: 2021.11.24 17:54:40 IST 3 CRA-5437-2021 already deposited, the execution of jail sentence of the appellant- Shubham Rathore 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 10.1.2022 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 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, as per listing policy.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

kundan

Signature Not Verified SAN

Digitally signed by KUNDAN SHARMA Date: 2021.11.24 17:54:40 IST