Madhya Pradesh High Court
Mahesh vs The State Of Madhya Pradesh on 21 February, 2023
Author: Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 5038 of 2022
(MAHESH Vs THE STATE OF MADHYA PRADESH)
Dated : 21-02-2023
Ms. Sharmila Sharma - Advocate for the appellant.
Shri Bhaskar Agrawal - Govt. Advocate for the respondent/State.
Heard on I.A. No.12276/2022, which is first application for suspension
of sentence and grant of bail filed under section 389 of the Cr.P.C. on behalf of
Appellant - Mahesh.
T he Trial Court has convicted the appellant under Sections 363, 366,
376(2)(n), 376(3) and 506 Part-2 of the I.P.C. and sentenced to undergo R.I. of
07 years with fine of Rs.1,000/-, R.I. of 10 years with fine of Rs.1,000/-, R.I. of
10 years with fine of Rs.1,000/-. R.I. of 20 years with fine of Rs.1,000/- and
R.I. of 07 years with fine of Rs.1,000/- respectively, and Section 5(l)/6 of
POCSO Act, 2012 and sentenced to undergo R.I. of 20 years with fine of
Rs.1,000/- with default stipulation, vide judgment of conviction and order of
sentence dated 05.05.2022 passed by Special Judge (POCSO Act, 2012),
Jhabua, in S.T. No.27/2021.
As per prosecution case, the prosecutrix had gone to the market Para,
10-15 days prior to the incident to buy clothes. The appellant met her. The
appellant told her that he loves her. He forcibly caught hold of her and
threatened her that if she would cry, he would kill her. The appellant took her
towards Kathiawada forest by bus. He kept her as a wife and repeatedly
committed rape with her. On 25.03.2021, the prosecutrix ran away from there
and came home and narrated the incident to her parents. On the same day, an
FIR (Ex P-1) was lodged in Police Station - Jhabua on the basis of oral
Signature Not Verified
Signed by: SHRUTI JHA
Signing time: 22-02-
2023 17:49:57
intimation given by the prosecutrix against the appellant.
Learned counsel for the appellant submits that learned Trial Court has not
assessed the prosecution evidence in regards the age of prosecutrix. At the time
of the incident, the prosecutrix was more than 18 years of age. She was a
consenting party to go with the appellant. The appellant has not committed any
offence. Statement of the prosecutrix is not supported by medical report as well
as FSL report. The appellant is in custody since 26.03.2021. Final hearing of
this appeal is not possible in near future. Therefore, sentence of appellant may
be suspended and he may be released on bail.
Per contra, learned G.A. for the respondent/State opposes the prayer and
submits that learned Trial Court has considered the scholar register of the
prosecutrix and has rightly assessed the evidence and found that at the time of
the incident, the prosecutrix was below 15 years. Hence, her consent is
immaterial. Therefore, 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 also considering
the evidence available on record, coupled with the fact that final hearing of this
appeal is not possible in near future, without expressing any opinion on merits
of the case, the application I.A.No.12276/2022 is allowed and jail sentence of
the appellant shall remain suspended.
I t is directed that subject to depositing the fine amount, if already not
deposited, appellant shall be released on bail, on furnishing personal bond in the
sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with solvent surety
Signature Not Verified
in the like amount to the satisfaction of trial Court, for his appearance before the
Signed by: SHRUTI JHA
Signing time: 22-02-
2023 17:49:57
Registry of this Court firstly on 21.03.2023, and on such other dates, as may
be fixed by the Registry in this regard, till final disposal of this appeal.
I.A. No.12278/202 for urgent hearing stands closed.
List for final hearing in due course.
C.C. as per rules.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
Shruti
Signature Not Verified
Signed by: SHRUTI JHA
Signing time: 22-02-
2023 17:49:57
