Vishnu vs The State Of Madhya Pradesh
2022 Latest Caselaw 11645 MP

                                    1
            IN THE HIGH COURT OF MADHYA PRADESH
                          AT INDORE
                            CRA No. 6115 of 2022
                 (VISHNU Vs THE STATE OF MADHYA PRADESH AND OTHERS)

Dated : 05-09-2022
      Shri Mohan Lal Patidar, learned counsel for the appellant.

      Shri Mukesh Kumawat, learned Govt. Advocate for the respondent/State.

Shri Anand Bhatt, learned counsel for the Respondent No.2/complainant.

Heard on the question of admission.

Record perused.

The appeal is admitted for final hearing.

List for final hearing in due course.

Also heard on I.A.No.9935/2022, first application for suspension of sentence filed on behalf of the appellant Vishnu.

This appeal is filed against the judgment dated 24.06.2022 passed by Special Judge, (POCSO Act), district Dhar in Special Case No.13/2019 whereby the appellant has been convicted under sections 363, 366 of the IPC and u/s 5(L)/6 of the POCSO Act and sentenced to undergo RI for 5 years with fine of Rs.500/-, RI for 7 years with fine of Rs.500/0 and RI for 20 years with

fine of Rs.1000/- respectively with further default stipulation.

As per prosecution case, father of the prosecutrix lodged a missing person report in the police station that she was missing since 26.03.2019 and during investigation she was recovered from the custody of the present appellant. Her statement under section 164 Cr.P.C was recorded in which she has categorically stated that she herself went along with the appellant, they performed marriage and the appellant has not committed any sexual assault with her. She was medically examined and DNA profile was taken.

Learned counsel for the appellant submits that the appellant has been convicted solely on the ground that at the time of commission of the offence the prosecutrix was minor but no cogent evidence has been given in support of her age. The father of the prosecutrix has stated that the date of birth recorded in the mark sheet is not correct and he has not produced any document regarding her date of birth at the time of admission, hence prays that the appellant is entitled for suspension of sentence during the pendency of appeal.

Learned counsel appearing on behalf of the respondent No.2/complainant has filed I.A.No.10579/2022 by submitting that she has no objection if the jail sentence of the appellant is suspended as she was in love affair with the

appellant and performed marriage with him.

Learned Govt. Advocate appearing on behalf of the respondent/State opposes the prayer by submitting that the date of birth recorded in the school certificate is a conclusive proof of age and does not require any further evidence.

Keeping in view the overall facts and totality of the circumstances and the arguments advanced by the counsel for the parties, without commenting on the merit of the case, the application is allowed. It is directed that the jail sentence passed against the appellant shall remain suspended during the pendency of this appeal subject to his furnishing personal bond in the sum of Rs.40,000/- (Rupees Forty Thousand) with one surety in the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 06.03.2023 and on such further dates as may be fixed in this behalf by the Registry during the pendency of this appeal. I.A.No.9935/2022 & I.A.No.10579/2022 stand disposed of.

C.c as per rules.

      (VIVEK RUSIA)                       (AMAR NATH (KESHARWANI))
          JUDGE                                    JUDGE

hk/
          Digitally signed by HARI
          KUMAR C G NAIR
          Date: 2022.09.06 13:05:08
          +05'30'