Madhya Pradesh High Court
Suresh @ Mukesh Sehariya vs The State Of Madhya Pradesh on 22 August, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 752 of 2023
(SURESH @ MUKESH SEHARIYA Vs THE STATE OF MADHYA PRADESH)
Dated : 22-08-2023
Shri Faisal Ali Shah- Advocate for appellant.
Dr. Anjali Gyanani- Public Prosecutor for respondent- State.
Per Justice Deepak Kumar Agarwal:-
Heard on IA.No. 13250 of 2023, first application u/S 389(1) of CrPC
moved on behalf of appellant Suresh alias Mukesh Sehariya for suspension of
jail sentence and grant of bail.
Vide judgment dated 12-09-2022 passed by First Additional Sessions
Judge, Sironj, District Vidisha (MP) in Sessions Trial No.05 of 2020 the present
appellant has been convicted under Section under Section 363 of IPC and
sentenced to undergo three years RI with fine of Rs.1,000/-, five years RI with
fine of Rs.2,000/- under Section 366 of IPC and twenty years RI with fine of
Rs.5,000/- under Section 6 of POCSO Act, 2012 with default stipulation. All
the sentences have been directed to run concurrently.
According to prosecution case, on 04-11-2019, father of prosecutrix
lodged a missing report at PS Dipnakheda, District Vidisha alleging therein that
on 31-10-2019, he had gone to the agricultural field of one Bhupendra for
watering and he stayed whole night at there. In the morning at around 05:00
when he returned back his home, his wife told that in the night at around 03:00
am, his daughter- prosecutrix has left house without informing anybody. When
he searched here and there, he could not succeed. Upon expressing a doubt
over appellant- accused that on the basis of allurement appellant had taken his
daughter- prosecutrix with him, he went to police station and on the basis of
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 8/22/2023
4:05:16 PM
such missing report, Crime No.06 of 2019 was registered. On the basis of such
missing report, matter was enquired. Prosecutrix was recovered on 05-11-2019
by police whose statement was recorded under Section 161 of CrPC wherein
she alleged that she is known to appellant since five- six months and both of
them like each other and want to get married. One day prior to date of incident,
when she met appellant, appellant enticed her to go with him and on the false
pretext of marriage, on the fateful night of alleged incident she had voluntarily
left her house and went with appellant and both of them stayed at house of
brother-in-law of appellant where appellant committed a rape with her.
Thereafter, when they were waiting for a bus at Kurwai Bus-stand, police
caught hold of them. FIR was lodged and appellant was arrested on 05-11-
2019. Prosecutrix was sent for medical examination. After completion of
investigation, charge sheet was filed. The trial Court after conclusion of trial
convicted and sentenced appellant for offence as mentioned above.
It is submitted by counsel for appellant that although prosecutrix was
major on the date of incident, the trial Court has committed an error in
determination of age of prosecutrix as minor below 18 years of age. Father of
prosecutrix Ramlal (PW2) in his evidence deposed that he does not remember
the date of birth of his daughter prosecutrix and as per evidence of mother of
prosecutrix Krishnabai (PW4) when prosecutrix was admitted in school she
was 09-10 years old. Similarly, evidence of Town Inspector of Police Station
Sironj, District Vidisha, PW8 -Sanjeev Shrivstava is not reliable and trustworthy
as his evidence does not support prosecution version. Prosecutrix as per her
own volition and wishes had left her house and gone with the appellant in the
night at around 03:00 am without informing her family which appears that
prosecutrix is a consenting party. It is further submitted that as per ossification
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 8/22/2023
4:05:16 PM
test conducted by Dr.Vinita Agrawal (PW-5), age of prosecutrix was 18 years
which carried more weight but the learned trial Court did not consider this
aspect in regard to determination of age of prosecutrix. It is further submitted
that appellant was remained in custody from 06-11-2019 till 07-07-2020 during
trial and from the date of judgment he is in custody, therefore, appellant has
already served near about 20 months of incarceration. This appeal is of year
2023 and its final outcome will take some time. Hence, prayed for suspension
of jail sentence and grant of bail.
Learned counsel for State opposed the suspension application and
prayed for its rejection.
Considering the aforesaid facts and circumstances of the case but
without commenting upon merits of the case, IA deserves to be and is hereby
allowed. It is directed that jail sentence of appellant will remain under
suspension subject to verification that amount of fine has been deposited, on
appellant's furnishing bail bond of Rs.50,000/- (Rupees fifty thousand only)
with one solvent surety of the like amount to the satisfaction of concerned trial
Court for his appearance before the Principal Registrar of this Court on 19th
December, 2023 and on such further dates as may be fixed by the Office in
this regard till disposal of the appeal.
Aforesaid IA stands closed.
Certified copy as per rules.
(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)
JUDGE JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 8/22/2023
4:05:16 PM
