Ganesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 5457 MP

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                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                      CRA No. 2788 of 2022
                                                (GANESH Vs THE STATE OF MADHYA PRADESH)

                          Dated : 03-04-2023
                                Shri L. P. Singh - Advocate for the appellant.

                                Shri Dileep Shrivastava - Govt. Advocate for respondent/ State.

None for victim, despite service of notice.

Trial Court record has been received.

Heard on admission.

Trial Court record perused.

Prima facie, this appeal seems to be arguable. Hence, admitted for final hearing.

Heard on I.A. No.9276/2022, an application under Section 389(1) of Cr.P.C.for suspension of jail sentence and grant of bail to the appellant pending the appeal.

T h e appellant has been convicted for commission of offence under Section 366 and 376(2)(n) of IPC and Section 5(1) read with Section 6 of POCSO Act, 2012 and sentenced to undergo 5 years R.I. with fine of

Rs.5000/-, and 10 years RI and fine of Rs.10,000/- with default stipulation for commission of offence under Section 376(2)(n) of IPC vide judgment dated 10.3.2022 passed in S.C. No.27/2019 (State of M.P. Vs. Ganesh) by Special Judge, POCSO Act, 2012, Burhanpur.

Learned counsel for the appellant submits that as per the prosecution story on 31.3.2019 missing report was lodged. It was suspected that prosecutrix has been kidnapped by the present appellant/ accused - Ganesh.

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 4/6/2023 11:45:08 AM

On 18.5.2019, almost after one month and 18 days, prosecutrix was recovered. Missing report and FIR (Exhibit P/7) was recorded. After investigation charge sheet was filed.

Learned counsel for the appellant submits that the Court below erroneously determined the age of victim as below 18 years. The determination of the age was based on admission register (Dakhil Kharij register). It is submitted that State Government has framed statutory rules "M.P. Date of Birth (Entries in the School Register) 1973". As per the Rules, unless the date of birth is recorded in the manner prescribed in the aforesaid rules, date of birth cannot be ascertained. The parents of the child are required to give a

declaration in a prescribed form as per the schedule. Sangita (P.W.1) who brought admission register was cross examined. She vividly admitted that the date of birth so required in the admission register is not supported by any such aforesaid prescribed form. Thus, the determination of age is bad in law.

Learned counsel for the appellant, taking through this Court to the evidence of P.W.3 (victim) has submitted that it is a case of consent. She traveled in the bus with the appellant and remained with him for more than one month and 18 days, but she did not raise any alarm. It is further submitted that in DNA profile report (Exhibit D/5) different male DNA was deducted on the source of victim. As different male DNA was deducted on the sample taken from source of victim, learned trial Court was not justified in outrightly rejecting the DNA report. Thus, it is submitted that learned Court below has committed an error in convicting the appellant. He has fair chance to succeed in appeal. Appellant has already suffered more than 03 years in jail. Therefore, it has been prayed that his remaining jail sentence be suspended.

On the other hand, learned counsel for the respondent/State has opposed Signature Not Verified Signed by: DEEPA MISHRA Signing time: 4/6/2023 11:45:08 AM

the prayer for grant of bail to the appellant on the basis of objection and intimates that the victim has been duly served.

I have heard learned counsel for the parties at length and perused the record.

Considering the aforesaid factual backdrop coupled with the fact that in a similar circumstances in Cr.A. No.11050/2022 (Dheeraj Kol Vs. State of M.P.) and Cr.A. No.5518/2022 (Bhagwat Prasad Prajapati Vs. State of M.P.), Division Bench of this Court suspended the jail sentence of appellant therein vide orders dated 5.1.2023 and 16.11.2022, I deem it proper to suspend the remaining jail sentence of the appellant. Consequently, I.A.No.9276/2022 is allowed.

The execution of jail sentence of appellant - Ganesh is hereby suspended subject to depositing the fine amount, if not already deposited. It is directed that the appellant be released on bail on his furnishing a personal bond to a sum of Rs.50,000/- (Rupees Fifty thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court with a further direction to appear before the trial Court, Burhanpur on 25.07.2023 and also on such other dates, as may be fixed by it in this regard during the pendency of this appeal.

List this case for final hearing in due course.

Certified copy as per rules.

(DINESH KUMAR PALIWAL) JUDGE

mrs. mishra

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 4/6/2023 11:45:08 AM