Madhya Pradesh High Court
Gabbar vs The State Of Madhya Pradesh on 19 December, 2022
Author: Vivek Rusia
1 THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.6387/2022
Gabbar S/o Gemal Singh vs. State of M.P.
Indore : 19/12/2022 :-
Shri M.S. Chouhan, learned counsel for the appellant.
Shri K.K. Tiwari, learned Government Advocate for the
respondent/State.
Shri V.S. Chouhan, learned counsel for the complainant.
_____________________________________________________
Heard on IA No.10591/2022, which is the first application
for suspension of sentence under Section 389 (1) of Cr.P.C. filed
on behalf of the appellant.
The appellant has been convicted for the offence under
Section 5(j)(i) readwith Section 6 of Protection of Children from
Sexual Offences Act, 2012 and sentenced to undergo 20 years of
RI with fine of Rs.10,000/- with default stipulation by Ist ASJ and
Special Judge, (Protection of Children from Sexual Offences Act,
2012), Bagli, District-Dewas vide judgment dated 26/05/2022 in
SC (Pocso) Session Trial No.6/2020.
As per prosecution story, on 29/01/2018 brother of the
prosecutrix (PW/3) had lodged a missing person report as well as
FIR to the effect that his sister (PW/6) is missing and he has an
apprehension that the present appellant has eloped her. Missing
person report was registered at 4/18 (Exhibit-P/14) as well as FIR
2 THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.6387/2022
was registered at crime No.39/2018. Thereafter police eventually
recovered the prosecutrix from the possession of the appellant on
30/12/2019 by that time she had delivered a female child. They
were medically examined and blood profiles were taken for DNA
test. The DNA report confirms that the female child is the
daughter of appellant and prosecutrix. However, she appeared in
the Court as wife of the appellant which trial Court observed in
para 102. Since at the time of commission of offence she was
found below 16 years, therefore, appellant has been convicted as
stated above.
Learned counsel for the appellant submits that prosecutrix in her
deposition before the Court has admitted that she is major but Court has
wrongly relied on date of birth recorded in scholar register in which date
of birth is mentioned as 08/10/2004. PW/4 has entered into witness-box
alongwith scholar register and in his cross-examination he has admitted
that no such document was produced at the time of recording of date of
birth. He has also admitted that there is correction in the year 2004. In
the aforesaid premises, learned counsel for the appellant submits that
there is no concrete evidence produced by the prosecution to establish
that prosecutrix was minor at the time of commission of offence.
Otherwise she is legally married wife of the appellant and
delivered a female child and they lived together almost one year
3 THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.6387/2022
and eight months as husband and wife. During trial the appellant
was on bail.
Learned counsel for the complainant submits that
prosecutrix has filed an affidavit in this appeal stating that in the
interest of future of female child, she has no objection if this Court
grants the suspension of jail sentence to the appellant.
Learned Government Advocate appearing on behalf of the
respondent/State opposes the prayer for suspension of sentence
and prays for rejection of the application.
Looking to the fact and totality of the case, the role
attributed to the appellant, considering the arguments advanced by
the counsel for the parties, the fact that appellant was on bail
during trial and the fact that there is no likelihood of early hearing
of this appeal, the application (I.A.No.10591/2022) is allowed. It
is directed that the jail sentence of the appellant shall remain
suspended and he be released on bail upon his depositing the fine
amount (if already not deposited) and furnishing personal bond in
the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one
surety in the like amount to the satisfaction of the trial Court for
his appearance before the Registry of this Court on 13/02/2023 and
on such further dates as may be fixed in this behalf by the Registry
during the pendency of this appeal.
4 THE HIGH COURT OF MADHYA PRADESH
Cr.A. No.6387/2022
Accordingly, (I.A.No.10591/2022) stands allowed and
disposed off.
A copy of this order be sent to Court concerned for it's
compliance.
Certified copy as per rules.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
Judge Judge
Aiyer*
Digitally signed by
JAGDISHAN AIYER
Date: 2022.12.20
18:47:26 +05'30'
