Madhya Pradesh High Court
Adil Khan vs The State Of Madhya Pradesh on 6 February, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 2734 of 2020
(ADIL KHAN Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 06-02-2023
Shri Rajmani Bansal - Advocate for the appellant.
Ms. Anjani Gyanani - Public Prosecutor for the respondent/State.
Heard on I.A.No.1942/2023, which is third application filed under
Section 389 (1) of Cr.P.C for suspension of sentence and grant of bail on
behalf of appellant Adil Khan. The first application ( I.A.No.14719 of 2020) of
the appellant was dismissed as withdrawn vide order dated 14.03.2022 while the
second application (I.A.No.12908 of 2022) of the appellant was dismissed as
withdrawn vide order dated 19.09.2022 with liberty to revive the prayer for
suspension of sentence after four months.
The appellant has been convicted under Sections 376 (2) (g) of IPC and
sentenced to suffer 10 years R.I. with fine of Rs.1000/-, under Section 363 of
IPC and sentenced to suffer three months' R.I. with fine of Rs.500/-, under
Section 366 of IPC and sentenced to suffer 5 years R.I. with fine of Rs.500/-
and under Section 5 (i)/6 of POCSO Act and sentenced to suffer RI for 20
years with fine of Rs.2000/- with default stipulations vide judgment dated
11/02/2020 passed in SC No.87/2017 by Special Judge (POCSO), Morena,
District Morena.
Appellant so far has undergone 5 years of jail incarceration.
As per prosecution story, an FIR was lodged by the father of the
prosecutrix on 31.10.2017 that her daughter /prosecutrix (PW-3) has been
missing since 30.10.2017 who was about 16 years of age. Accordingly, case
was registered vide Crime No.1140/2017 under Sections 363, 366, 376, 376(2)
(N) of IPC and Section 3/4, 5/6 of POCSO Act and thereafter, she was
recovered on 25.11.2017 and her statement under Section 161 and 164 of
Cr.P.C. were recorded. Upon completion of investigation and submissions, the
case was committed to the sessions Court for trial. The Sessions Court upon
critical evaluation of evidence on record, has convicted and sentenced the
appellant as aforesaid.
Learned counsel for the appellant submits that sessions Court did not
appreciate the evidence on record in right perspective. Impugned judgement is
based upon conjuncture and surmises and dehorse the evidence placed on
record. Para-6 and 7 of the ocular evidence of prosecutrix (PW-3) suggests that
there was no coercion applied on her while she was going with the appellant as
she never reported the same to any person though she traveled with the
appellant upto Delhi and stayed with him in different localities in Delhi.
Thereafter, she came back to Morena. Even otherwise, the appellant so far has
suffered jail incarceration for almost 5 years. Hence, in the light of liberty
granted by this Court on 19.09.2022, this Court may grant benefit of suspension
of sentence to the appellant.
Per contra, learned Public Prosecutor for the respondent/State opposes
the application supporting the order impugned with submission that learned
Sessions Court upon critical evaluation of evidence on record, has rightly been
convicted the appellant and sentenced accordingly. Apart from the fact that she
was minor on the date of incident, the DNA report has also found positive and
against the appellant. As such, allegations are rightly being found proved,
therefore, no case for suspension of sentence is made out.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions so advanced touching merits of the
case, but regard being had to the fact that appellant has already suffered more
than 5 years of incarceration and that appeal is of the year 2020 and there is no
likelihood of early hearing of the appeal in the near future, the appellant is held
entitled for suspension of jail sentence.
Accordingly, it is directed that the jail sentence of the appellant shall
remain suspended and he be released on bail on his furnishing a personal bond
in the sum of Rs.2,00,000/- (Rupees Two Lac only) with one solvent surety
in the like amount to the satisfaction of the trial Court subject to verification of
factum regarding deposit of fine amount. Appellant is directed to appear before
the Registry of this Court on 10/04/2023 and on other subsequent dates as
may be fixed in this behalf with following further conditions:-
(i) the concerned jail authorities are directed that before releasing
the appellant, the medical examination of the appellant be
conducted through the jail doctor and if it is prima facie found that
she is having any symptoms of COVID-19, then the consequential
follow up action or any further test required be undertaken
immediately. If not, appellant shall be released on bail in terms of
the conditions imposed in this order ;
(ii) violation of conditions, State is free to apply for cancellation of
bail.
Accordingly, I.A.No.1942 of 2023 stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of deciding the
instant I.A. and shall have no bearing on the merits of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (MILIND RAMESH PHADKE)
JUDGE JUDGE
AK/-
ANAND KUMAR
2023.02.07
09:36:07 +05'30'
