Madhya Pradesh High Court
Imtiyazuddin Khan vs The State Of Madhya Pradesh on 4 December, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 12263 of 2023
(IMTIYAZUDDIN KHAN Vs THE STATE OF MADHYA PRADESH)
Dated : 04-12-2023
Shri Pushpendra Dubey - Advocate for the appellant.
Shri Devendra Shukla - Panel Lawyer for the State.
Reserved on : 30.11.2023
Pronounced on : 04.12.2023
Arguments of both the counsel for the parties are heard at length.
Judgment and record of the Court below perused.
ORDER
Heard on admission.
The appeal being arguable is admitted for final hearing.
Also heard on I.A No.22969/2023, which is first application under
Section 389(1) of Cr.P.C for suspension of sentence and grant of bail moved
on behalf of the appellant.
The appellant has been convicted for the offence punishable under
Sections 354(A)(1)(4), 354 (D) and 341 of IPC and Sections 11(1)/12 and
11(4)/12 of POCSO Act and sentenced to R.I. for 3 years, R.I. for 3 years, S.I.
for 1 month only in IPC sections with default stipulations.
Learned counsel for the appellant submits that the jail sentence of
appellant was suspended by the trial court till 05.10.2023 (as mentioned in the
application). Thereafter, this court vide order dated 29.09.2023 has extended
the period of bail of appellant from 05.10.2023 to 05.12.2023. The maximum jail
sentence of appellant is of three years and he was on bail during trial and did
not misuse the liberty granted to him and also the appeal would take
considerable time to conclude. He is ready to furnish adequate surety and shall
abide by the directions and conditions, which may be imposed by this Court.
Hence, it is prayed that the application for suspension of sentence may be
considered.
Learned counsel for the State has opposed the application and pray for
its rejection.
Heard learned counsel for the parties and perused the judgment and
record of the court below.
In this application for suspension of sentence, the ground of delay in
reporting the matter to the police has been taken primarily but record of the trial
court reveals that the offence alleged was a continuing one which lasted from
26.1.2019 till 19.6.2019. The victim in this case was a school going 13-year-old
girl who hesitated to reveal the facts of stalking and sexual harassment to her
parents initially and upon her revelation alone the matter was reported to the
police.
It has also been argued in this application that the identity of prosecutrix
was not established because in the FIR, the name of prosecutrix is different
from the documents that were produced to establish her date of birth but it
cannot be ignored that the mother of prosecutrix P.W.2 has stated in her para
no.1 before the court that the nick name of prosecutrix is "A" while her name
recorded in school is "B" and this fact is not challenged in her cross-
examination. Therefore, cross-examination of Investigating Officers Archana
Dhurve (P.W.4) and Bharat Singh Meena (P.W.6) has no importance. It was the
mother who should have been cross-examined about the two names of
prosecutrix reflected in her statements and the documents, but her testimony
was not challenged.
Prayer for suspension of sentence has also been made on the ground that
identity of applicant has not been established, particularly in the light of
contradictions reflected in the evidence as to how the name of applicant came
into the knowledge of informant and the witnesses. It cannot be ignored here
that the offence continued for almost six months, therefore, variation about the
source informing the name of appellant was natural to surface in evidence but
the identity of appellant was clearly established by prosecutrix P.W.1 when she
stated before the court on oath that she knew the appellant present in court as a
person who was sexually harassing and stalking her.
It has also been argued that the trial court was in error in passing a
sentence of three years under Section 354(A)(1)(iv) of IPC. That error might be
there but appellant has been convicted under Section 354-D of IPC as well and
for this offence, he is awarded a sentence of 3 years R.I.
Having considered the above facts, the application for suspension of
sentence cannot be allowed in the light of corroborative nature of evidence
available against the appellant.
The application under consideration is accordingly dismissed.
List this case for final hearing in due course.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2023.12.04 19:45:53 +05'30'
