Madhya Pradesh High Court
Harish vs The State Of Madhya Pradesh on 11 October, 2022
Author: Satyendra Kumar Singh
1 Cr.A.No.4764/2022
(Harish Vs. State of M.P.)
Indore : Dated 11.10.2022
Shri Akash Rathi, learned counsel for the appellant.
Shri Ajay Raj Gupta, learned Panel Lawyer for the
respondent/State.
Heard on admission.
The appeal is admitted for final hearing.
Learned counsel for the respondent/State again seeks time to
file reply to the application for suspension of sentence.
Learned counsel for the appellant has opposed the prayer.
As ample opportunity has been provided to him and reply has
not been filed, therefore, heard on I.A.No.7680/2022, which is first
application filed under Section 389(1) of Cr.P.C. for suspension of
sentence on behalf of the appellant.
The trial Court has convicted the appellant under Section 363 of
IPC and sentenced to undergo seven years' RI with fine of Rs.1.000/-,
under Section 366 of IPC and sentenced to undergo ten years' RI with
fine of Rs.1,000/-, under Section 376 of IPC and sentenced to undergo
ten years RI with fine of Rs.1,000/-, under Section 376 r/w 511 of IPC
and sentenced to undergo ten years' RI with fine of Rs.1,000/- and under
Section 3/4, 3(c)/4 r/w 18 of the Protection of Children from Sexual
Offences Act and sentenced to undergo ten years' RI with fine of
Rs.1,000/- (each count) with default stipulation, vide judgment of
conviction and order of sentence dated 1.4.2022 passed by Special Judge
(POCSO Act), Neemuch in S.C.No.12/2020.
(Harish Vs. State of M.P.)
Learned counsel for the appellant referring to the statement of the
prosecutrix's father (PW-2) submits that proseuctrix's father himself
admitted in para 6 of his statement that prosecutrix was three-four years'
younger to her brother, who was about 27 years of age. Nothing except
school scholar entry produced on record about the age of the prosecutrix,
therefore, prosecution has failed to prove that prosecutrix was minor at
the time of incident. It is apparent from her statement that she was
consenting party. No offence is made out against the appellant, even then
appellant has been convicted for the aforesaid offences. The impugned
judgment is not sustainable. Appellant is in custody for very long period.
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 for the respondent/State has opposed the prayer
and submits that as per school scholar entry produced on record
prosecutrix was minor aged about 17 years four months at the time of
incident. Offences alleged against him are of serious nature, therefore, he
is not entitled for grant of bail.
Having considered the rival submissions, material produced on
record by learned counsel for the appellant, statement of the prosecutrix
as well as her father and also considering the overall material, there is no
likelihood of hearing of this appeal in near future, but without expressing
any opinion on merits of the case, the application is allowed and jail
sentence of the appellant shall remain suspended.
(Harish Vs. State of M.P.)
It is directed that subject to depositing the fine amount, if already
not deposited, he shall be released on bail, on his 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 his appearance before the Registry of this Court firstly on 12.12.2022,
and on such other dates, as may be fixed by the Registry in this regard,
till final disposal of this appeal.
I.A.is allowed.
List for final hearing in due course.
C.C. as per rules.
(Satyendra Kumar Singh)
Judge
Patil
Digitally signed by
SHAILESH PATIL
Date: 2022.10.12
10:28:40 +05'30'
