Madhya Pradesh High Court
Mujeem Khan vs The State Of Madhya Pradesh on 26 April, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 7385 of 2022
(MUJEEM KHAN Vs THE STATE OF MADHYA PRADESH)
Dated : 26-04-2023
Shri Rajendra Tiwari, learned counsel for the appellant.
Shri Rajesh Shukla, learned Additional Advocate General for the
respondent-State.
Heard on IA No.18733/2022, first application under Section 389(1) Cr.
P.C. filed on behalf of the appellant seeking suspension of sentence and grant
of bail.
Appellant stood convicted under Section 4 of POCSO Act and
sentenced to undergo 07 years' RI with fine of Rs.10,000/-, Section 3(1)(b)(I)
of the SC & ST Act and sentenced to undergo 01 year's RI with fine of
Rs.500/- and under Section 3(2)(V) of SC & ST Act and sentenced to undergo
Life Imprisonment with fine of Rs.10,000/- with default stipulations respectively
vide judgment of conviction and order of sentence dated 28-06-2022 passed by
Special Judge (POCSO Act), Datia in Special Case No.63/2018.
Appellant so far has undergone 05 years and 08 months' incarceration.
As per prosecution story, complainant (PW-2) who is father of the
prosecutrix lodged a FIR alleging that on 17-10-2017 at about 12:30 in the
afternoon while he was lying on the bed due to injury on his leg, his daughter
prosecutirx aged about 16 years had gone out to draw the money from the bank
and when she did not return back till 2:30, complainant and other members of
the family started searching her. One Bhupendra Badai r/o Sapa Pahad told him
that his daughter prosecutrix after changing her dress had gone away with the
accused/ appellant Mujeem Khan towards fatak area. Under such
circumstances, appellant was suspected of cajoling the prosecutrix and
thereafter eloped with her. Accordingly, FIR was registered at Crime
No.436/2017. After her recovery, her statements under Sections 161 and 164
Cr.P.C. were recorded and sample was collected and sent for DNA test. On
completion of investigation, challan was filed and the case was committed to
the Sessions Court for trial. The Sessions Court upon critical evaluation of the
evidence placed on record convicted and sentenced the appellant as aforesaid.
Learned counsel for the appellant while taking exception to the impugned
judgment has made submissions first that it is a case of consent and prosecutrix
was major at the time of incident. Solitary evidence produced showing her age
is her Class II mark-sheet, of which authenticity is highly doubtful. That apart,
prosecutrix herself has turned hostile during trial and did not support the story
of prosecution. Secondly, a bare reading of the FIR suggests that appellant and
prosecutrix were known to each other. She liked him and therefore, had gone
with him on her own volition. Complainant father of the prosecutrix (PW-2)
himself has denied her date of birth as 08/05/2001 in the Class II mark-sheet
during his deposition in the cross-examination. Under such circumstances, the
impugned judgment suffers from patent illegality and therefore, prays for
suspension of sentence and grant of bail to the appellant.
Per contra, learned counsel for the respondent-State opposed the
application while supporting the impugned judgment with the submission that in
the teeth of the fact that prosecutrix was minor at the time of incident and DNA
test was found positive therefore, no exception can be taken in the matter of
suspension of sentence and grant of bail to the appellant.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions touching merits of the case, regard
being had to the fact that the appellant has suffered incarceration of almost 05
years and 08 months and there is no likelihood of early hearing of this appeal in
near future and in the obtaining facts and circumstances, we are of the view that
appellant deserves to be and is accordingly extended the benefit of suspension
of sentence and grant of bail.
Accordingly, it is directed that the jail sentence of present appellant shall
remain suspended and he shall be released on bail, subject to verification of
amount of fine being deposited and on his furnishing a personal bond in the
sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in the
like amount to the satisfaction of the Trial Court. Appellant is directed to appear
before the Registry of this Court first on 27-06-2023 and on other subsequent
dates as may be fixed by Office in this behalf with following other conditions:-
(i) Appellant will abide by the terms and conditions of various
circulars and orders issued by the Central Government and the State
Government as well as the local administration from time to time in the
matter of maintaining social distancing, physical distancing, hygiene, etc.
to avoid proliferation of Novel Corona virus (Covid-19);
(ii) The concerned Jail Authorities are directed that before releasing
appellant his medical examination be conducted through the jail doctor and
if it is prima facie found that he is having any symptom of COVID-19
then the consequential follow up action including the isolation/quarantine
or any further test requested be undertaken immediately.
(iii) On violation of any of the conditions, State is free to apply for
cancellation of bail.
Accordingly, IA No.18733 of 2022 stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of disposal of the
application for suspension of sentence and shall have no hearing on the merits
of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
vc
VARSHA
CHATURVEDI
2023.04.26
18:14:41 +05'30'
