Mahesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 2913 MP

                                                                1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                         CRA No. 36 of 2022
                                                  (MAHESH Vs THE STATE OF MADHYA PRADESH)

                           Dated : 17-02-2023
                                  Shri Vivek Singh, learned counsel for the appellant.

                                  Shri Kamal Kumar Tiwari, learned Govt. Advocate for the
                           respondent/State.

Heard on I.A.No.11286/2022, which is first application for suspension of sentence and grant of bail filed under section 389(1) of the Cr.P.C. on behalf

of appellant-Mahesh.

The trial Court has convicted the appellant vide judgment of conviction and order of sentence dated 24.11.2021 passed by Additional Session Judge, Tarana, District-Ujjain in C.I.S/S.T.No.41/2020 as under:-

Conviction/ Punishment Fine In default Punishment Section and Act

363 of the IPC 7 years R.I. Rs.500/- 1 month R.I.

366(A) of the IPC 10 years R.I. Rs.1,000/- 1 month R.I.

                              5(L)/6 of POCSO
                                                      20 years R.I.          Rs.500/-           3 months R.I.
                                  Act,2012

As per prosecution case, at the time of incident prosecutrix was aged more than 16 years. The appellant is cousin brother of prosecutrix therefore, both of them are familiar prior to the incident. On 03.06.2019 the appellant called her by giving a message on mobile phone thereafter, the prosecutrix went to Molgamod and the appellant also came there. The appellant took her to Ujjain on his motorcycle and stopped her to his friend's home and committed rape with her during night. On the next day, appellant took her to his sister's house in Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 21-02-2023 10:38:17

Indore and kept her for two to three days thereafter, he took her to many places and repeatedly committed sexual intercourse with her. The appellant on 22.06.2019 left her at her aunt's (Buaa) house. Her aunt intimated to father of the prosecutrix thereafter, her father took her to the house and produced her to the police station. The police on 24.06.2019 recovered prosecutrix from the possession of her father.

Learned counsel for the appellant submits that the appellant has not committed any offence and he has falsely been implicated in the case. At the time of the incident the prosecutrix was a major woman and she went with the appellant with her consent. The appellant has not taken her forcibly. Further it is

also submitted that Section 5(L) read with Section 6 of POCSO Act, 2012 is amended on 16.08.2019 i.e. after the date of the incident therefore, the appellant could not be convicted under amended section of POCSO Act. Prior to amendment the appellant could be convicted for at least 10 years but the trial Court has convicted the appellant under the amended Section 6 of POCSO Act for 20 years R.I. Learned counsel also submitted that the statement of the prosecution witnesses is contradictory in respect of age of the prosecutrix. In paragraph-5 of cross-examination father of the prosecutrix P.W.-1 has admitted that real date of birth of the prosecutrix is 01.05.2000, therefore, it is proved that she is not minor at the time of incident. The appellant is in custody since 28.06.2019. Final hearing of the appeal is not possible in near future, therefore, it is prayed that remaining jail sentence of the appellant may be suspended and he may be released on bail.

Learned Govt. Advocate for the respondent/State has objected the prayer of the appellant by submitting that as per un-amended section 6 of POCSO Act the appellant may be sentenced up to Life Imprisonment. The learned trial Court Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 21-02-2023 10:38:17

has properly considered the scholar register Exhibit-P/12 and statement of Head Master Ratan Singh Patel, P.W.-8 and found that in paragraph-20 of the judgment at the time of incident age of the prosecutrix was 16 years and 1 month. Therefore, at the time of incident the prosecutrix was below 18 years. Prosecutrix has supported the case of the prosecution. Statement of the prosecutrix is supported by DNA report Exhibit-P/38. At the time of incident the prosecutrix was minor therefore, her consent is immaterial. Hence, it is prayed that application for suspension of jail sentence of the appellant is liable to be rejected.

We have heard learned counsel for both the parties and perused the record.

Looking to the facts and circumstances of the case and considering the statement of the prosecutrix P.W.-2 which is supported by DNA report Exhibit- P/38, at this stage we are not inclined to grant suspension of jail sentence to the appellant and accordingly, I.A.No.11286/2022 is rejected.

I.A. No.11287/2022 for Urgent hearing stands disposed of. List the matter for final hearing in due course.

                                  (S. A. DHARMADHIKARI)                        (PRAKASH CHANDRA GUPTA)
                                           JUDGE                                        JUDGE

                           ajit




Signature Not Verified
Signed by: AJIT
KAMALASANAN
Signing time: 21-02-2023
10:38:17