Madhya Pradesh High Court
Rambabu vs The State Of Madhya Pradesh on 14 August, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 9641 of 2022
(RAMBABU Vs THE STATE OF MADHYA PRADESH)
Dated : 14-08-2023
Shri Jeevan Singh Gurjar - Advocate for the appellant.
Shri Amit Rawal - Panel Lawyer for respondent/ State.
Heard on question of admission.
1. The appeal is admitted for final hearing.
2. Also heard on I.A.No.3214 of 2023, which is first application under
Section 389(1) of Cr.P.C. for grant of bail and suspension of remaining jail
sentence on behalf of sole appellant Rambabu.
3. Appellant stands convicted vide judgment dated 06/08/2022 passed in
S.T.No.04/2021 under Section 5(L)/6 of POCSO Act and has been sentenced
to undergo 20 years R.I. with fine of Rs.20,000/- with usual default stipulation.
4. As per prosecution story, father of the prosecutrix Kanhaiyalal
alongwith his wife lodged a report that their daughter aged about 21 years went
to market Dongar Gaonv on 30.01.2020 at 10:00 AM to purchase grocery, but
did not return till evening. They have made search in the surrounding area of
residence, but could not find her. The information was recorded under missing
by ASI Komalram Dhakad. Matter was taken up under investigation under
Section 363 of IPC. During investigation on 06.07.2020 the prosecutrix aged
about 16 years and 4 months was recovered from Gram Barodiya custody of
appellant Rambabu. Her statement was recorded under Sections 161 as well as
164 of Cr.P.C. in which she disclosed that she was forcibly taken by appellant
on pretext of marriage. A Scholar Register was recovered in which the date of
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Signed by: ANUSHREE
PANDEY
Signing time: 16-08-2023
17:20:49
birth of the prosecutrix was recorded as 12.09.2003. She was medically
examined and DNA profile was taken. An FIR under Sections 363, 366, 498
and 376(2)(n) and 3/4 and 5(L)/6 of POCSO Act be registered against the
appellant and his mother Kalibai. After investigation charge-sheet was filed and
charges were framed, which the accused persons denied and pleaded not guilty.
Prosecution examined as many as 8 witnesses an exhibited 24 documents as
Ex.P-1 to Ex.P-24.
5. Learned trial Court decided the issue No.1 as to establish the age of
prosecutrix.
6. The learned Court has placed reliance on entry of date of birth
12.09.2003 recorded under Scholar register No.1483, by way of this, scholar
register she was taken admission in the 9th class and the date of birth was
recorded on the basis of transfer certificate. However, the prosecutrix as well as
his father (PW-50) have deposed the age of prosecutrix 21 years in Aadhar card
the birth year is written 01.01.1999.
7. Learned Court has placed reliance on entry in scholar register Ex.P-5
and P-6 and held that she was below 18 years, but the original Scholar Register
in which the first date of birth was recorded has not been produced before the
Court. In Ex.P-6 is the Scholar Register, when she took admission in a different
school by production of Transfer Certificate. Prima facie the date of birth
recorded in a Transfer Certificate and second subsequent Scholar Register
cannot be relied unless the entry in the first scholar register recorded by Head
Master or School Teacher had not been examined. Even the father of the
prosecutrix has stated that the age of her daughter was 21 years when she
allowed with the present appellant.
8. Learned counsel for the appellant submits that prosecutrix went
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Signed by: ANUSHREE
PANDEY
Signing time: 16-08-2023
17:20:49
alognwith him and thereafter, they performed the marriage on 17.02.2020.
Affidavit is marked, but it is available in the case recorded, which was notarized
before the notary. The prosecutrix has also admitted in the evidence that she
performed the marriage, therefore, she stated to be major and it is a case of
consent. Learned counsel for the appellant also submits that according to
statement of prosecutrix she was already married, but she left her husband,
therefore, it cannot be presumed that she was married after attaining the age of
majority, otherwise her parents would have been prosecuted. Prosecutrix lived
more than 5 and half months with him and during this period she had never
made any alarm and had not tried to escape from the custody of present
applicant, therefore, it is a case of consent, but under the pressure of her
parents she has deposed against him in the Court. Appellant has no criminal
past and he was on bail during the trial and he never misused the liberty given to
him. Looking to old pendency of the cases for consideration, final conclusion
of this appeal would take sufficient long time. There is a strong case in favour
of the appellant. Hence, the execution of the remaining part of the jail sentence
of the appellant be suspended till the final disposal of this appeal.
9. Per contra, learned counsel for the respondent / State opposes the
application for suspension of sentence and prays for its rejection by submitting
that the date of birth recorded in scholar register has rightly been accepted in
Court statement. She has not supported the case of the appellant and prima
facie the allegation is that she was forcibly taken and forcibly marriage was
solemnized. DNA report is also against the appellant. Hence, he is not entitled
to grant benefit of suspension of sentence.
10. Considering all the facts and circumstances of the case, nature of the
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Signed by: ANUSHREE
PANDEY
Signing time: 16-08-2023
17:20:49
allegation levelled against the appellant and also taking note of the fact that
appellant was on bail during the trial; there is no complaint that he has misused
the liberty granted to him; no motive is established in the matter and final
conclusion of the appeal will also take sufficient long time. In view of the
aforesaid facts and circumstances of the case, We deem it proper to suspend
the remaining custodial sentence of this appellant.
11. Accordingly, I.A.No.3214 of 2023 is allowed and it is directed
subject to deposit of fine amount, if not already deposited, and subject to
furnishing personal bond by the appellant in the sum of Rs.50,000/- (Rupees
Seventy Five Thousand Only) with one solvent surety in the like amount to
the satisfaction of learned trial Court, the execution of remaining custodial part
of the sentence of the appellant shall remain suspended, till final disposal of this
appeal. The appellant after being enlarged on bail shall mark his presence before
the Registry of this Court on 18/12/2023 and on all such subsequent dates,
which are fixed in this behalf.
12. List the matter for final hearing in due course.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Anushree
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 16-08-2023
17:20:49
