Madhya Pradesh High Court
Suresh vs The State Of Madhya Pradesh on 29 June, 2022
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 2287 of 2021
(SURESH Vs THE STATE OF MADHYA PRADESH)
Dated : 29-06-2022
Shri Kailash Chandra Waghela, learned counsel for the appellant.
Shri Shashwat Seth, learned Public Prosecutor for the respondent/State.
Heard on the question of admission.
Appeal is admitted for hearing.
Heard on I.A.No.7322/2021, which is an application filed under Section
389(1) of Cr.P.C, for suspension of jail sentence moved on behalf of the
appellant - Suresh.
Appellant has been convicted for the offence punishable under Section
363, 366 & 376(2)(N) of IPC and further convicted u/s 5L/6 Protection of
Children From Sexual Offences Act and sentenced to undergo RI for 1 year
with fine of Rs. 1,000/-, RI for 2 years with fine of Rs.1,000/-, RI for 10 years
with fine of Rs.1,000/- with default stipulation vide judgment of conviction and
order of sentence dated 13.02.2021 passed in S.T. No. 39/2020.
Prosecution story in brief is that appellant kidnapped/abducted minor
prosecutrix and after wrongfully confining her, committed rape upon her
repeatedly.
Learned counsel for the appellant submits that prosecutrix has not
produced any document except school scholar register entry about hear age.
Mother of the prosecutrix (PW-3) in para 3 of her cross-examination has
admitted that she is 17 years of age at the time of incident. Headmaster Pukhraj
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SAN Chouhdary(PW-4) is also unable to depose that on what basis her date of birth
Digitally signed by SEHAR HASEEN
Date: 2022.06.30 11:33:30 IST has been written in the school scholar register at the time of admission.
Prosecutrix(PW-2) herself deposed that she voluntarily went with the appellant
at different place and lived with him. Hence, prosecution has failed to prove
that prosecutrix was below 18 years of age at the time of incident and learned
trial Court has committed an error in holding the appellant guilty for the
offences punishable u/S 363 & 366 of IPC and 5L/6 of POCSO Act r/W
376(2)(n) of IPC. Even otherwise, appellant is in custody since 12.06.2018 and
has already suffered about 4 years of custody out of total sentence of 10 years
awarded.There is no likelihood of hearing of the appeal in near future. With the
aforesaid, prayer is made for suspension of the remaining custodial period of
the appellant and grant of the bail to the appellant.
Learned Panel Lawyer for the respondent/state opposes the prayer for
suspension of remaining jail sentence with the submission that as per scholar
register entry, prosecutrix was minor at the time of incident. Hence, no case for
suspension of sentence and grant of the bail to the appellant is made out .
Having considered the rival submission, evidence produced on record
with regard to age of the prosecutrix including statement of mother (PW-3) of
the prosecutrix and Head Master (PW-4), so also looking to the period of
custody already suffered by the appellant, this Court is of the considered view
that it is a fit case for suspension of the sentence and grant of bail to the
appellant. Hence, without expressing any opinion on merits of the matter
I.A.No.7322/2021 is allowed and jail sentence of the appellant shall remain
suspended.
I t is directed that subject to depositing the fine amount, if already not
deposited he shall be released on bail, on furnishing a personal bond in the sum
Signature Not Verified
SAN
of Rs.50,000/-(rupees fifty thousand only) along with a solvent surety in the
Digitally signed by SEHAR HASEEN
Date: 2022.06.30 11:33:30 IST
like amount to the satisfaction of the trial Court, for his appearance before the
Registry of this Court firstly on 14.09.2022 and on such other dates, as may
be fixed by the Registry in this regard, till final disposal of this appeal.
List for final hearing in due course.
C.c. as per rules.
(SATYENDRA KUMAR SINGH)
JUDGE
sh
Signature Not Verified
SAN
Digitally signed by SEHAR HASEEN
Date: 2022.06.30 11:33:30 IST
