Radhakishan vs State Of M.P.
2022 Latest Caselaw 6465 MP

1                           Cr.A.No.4287/2020
                     (Radhakishan Vs. State of M.P.)

Indore : Dated 29.4.2022
      Shri S.S.Tuteja, learned counsel for the appellant.
      Shri Mukesh Kumawat, learned Govt.Advocate for the
respondent/State.

Heard on I.A.No.28256/2021, first application for grant of suspension of sentence filed on behalf of appellant.

The trial Court has convicted the appellant under Section 363 of IPC and sentenced to undergo three years' RI with fine of Rs.2,000/-, under Section 366 of IPC and sentenced to undergo seven years' RI with fine of Rs.3,000/- and under Section 376(1) of IPC and sentenced to undergo ten years' RI with fine of Rs.20,000/-, with default stipulation, vide judgment of conviction and order of sentence dated 7.11.2019 passed by Special Judge/4 th Addl.Sessions Judge (POCSO Act), Dewas, District Dewas in Special S.T.No.159/2019.

Prosecution story, in brief, is that appellant kidnapped/abducted the minor prosecutrix aged about 17 years two months and forcefully committed sexual intercourse with her.

Learned counsel for the appellant submits that prosecution has failed to prove the fact that proxecutrix was minor at the time of incident as prosecutrix's father PW-2 and mother PW-3 have admitted in their cross-examination that at the time of prosecutrix's admission in the school they stated her date of birth on the basis of assumption. There is nothing on record except scholar register entry Ex.P/19 about age of the prosecutrix. Learned counsel for the appellant further

(Radhakishan Vs. State of M.P.)

submits that prosecutrix herself admitted in her cross-examination that she voluntarily went with the appellant, therefore, learned trial Court has committed error in holding the appellant guilty for the aforesaid offences. Appellant is in custody since 18.3.2019. There is no likelihood of hearing of appeal in near future. In view of aforesaid, learned counsel for the appellant prays for suspension of remaining jail sentence and grant of the bail to the appellant.

Learned counsel appearing for the respondent/State has opposed the prayer and submits that looking to the nature of allegations the appellant is not entitled for bail.

Having considered the rival submissions, material produced on record specifically with regard to age of the prosecutrix and also considering the statement of prosecutrix as well as statements of her parents and also period of incarceration already suffered by the appellant and there is no likelihood of hearing of appeal in near future, but without commenting on merits of the case, the application I.A.No.28256/2021 is allowed and jail sentence of the appellant shall remain suspended.

It is directed that subject to depositing the fine amount, if already not deposited, he shall be released on bail, on furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with solvent surety in the like amount to the satisfaction of trial Court, for their appearance before the Registry of this Court

(Radhakishan Vs. State of M.P.)

firstly on 4.7.2022, and on such other dates, as may be fixed by the Registry in this regard, till final disposal of this appeal.

I.A.No.28256/2021 is allowed.

List in due course.

C.C. as per rules.

(Satyendra Kumar Singh) Judge

Patil

Digitally signed by SHAILESH PATIL Date: 2022.04.29 18:32:13 +05'30'