Madhya Pradesh High Court
Prakash Kumar Gondude vs The State Of Madhya Pradesh on 22 February, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 2520 of 2020
(PRAKASH KUMAR GONDUDE Vs THE STATE OF MADHYA PRADESH)
Dated : 22-02-2023
Shri Sanjay Sharma - Advocate for the appellant.
Shri S.K.Kashyap - Government Advocate for the respondent/State.
I.A. No.737 of 2021 an application under Section 389(1) of the Cr.P.C
for suspension of sentence and grant of bail arising out of judgment dated
27.01.2020 delivered in S.T. No.2400233/2016, by Special Judge (POCSO
Act), Balaghat District Balaghat (M.P.) is taken up for consideration.
The appellant has been convicted under Section 363 of the I.P.C. and
sentenced to undergo for 03 years with fine of Rs.2,000/-, Section 366 of the
I.P.C. and sentenced to undergo for 05 years with fine of Rs.2,000/- and
Sections 376(2)(dha) read with section 5(tha) /6 of the I.P.C. & POCSO Act
and sentenced to undergo for life with fine of Rs.2,000/-with default stipulation.
Shri S.K.Kahsyap, Government Advocate has informed that victim has
been served.
As per prosecution story, complainant lodged a report on 27.05.2016 at
Police Station- Kirnapur that his daughter/victim aged about 17 years 09 months
is missing from mid night of 24.05.2016. All the family members slept on the
said day and victim used to sleep with her grandmother. At around 12:00
O'clock when grandmother woke up to answer the call of nature, she found that
prosecutrix is not around. The family members made an attempt to inquire
about her and when she could not be traced, lodged the said report. The victim
is recovered from appellant on 03.06.2016.
Learned counsel for the appellant submits that the Court below has
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 23-Feb-23
10:39:11 AM
wrongly determined the age of prosecutrix. The determination of age is based
on Admission Register. The relevant portion of Admission Register (Exhibit
P/12C) shows that there is over writing on the date of birth written in words and
otherwise. The witness Smt.Rajni Shukla (PW-5) could not give any
satisfactory explanation about this over writing. The victim was medically
examined by Dr. D.K.Raut (PW-10) who determined her age as 17 years with a
clear finding that it may be two years more or less. The victim remained with
appellant for quite some time with consent. They travelled from one place to
other places. The victim had opportunity to seek help and raise alarm but she
did not make such effort to show that she was a consenting party. The FSL
report cannot be used against the appellant for the simple reason that the said
report was not properly confronted with the appellant while recording his
statement under Section 313 of Cr.P.C. The attention was drawn on question
No.79 wherein a barred question was raised as to what is the opinion of
appellant regarding the FSL report.
Shri Sharma, Advocate by placing reliance on recent judgement of this
Bench in CRA No.859/2010 (Sunil Vs. State of Madhya Pradesh) decided
on 08.02.2023 submits that unless incriminating material is brought to the notice
of the accused with accuracy and precision, said material cannot be used
against the appellant. Considering the aforesaid, it is prayed that its a matter of
consent and appellant has been falsely arraigned. The final hearing of this appeal
will take time. The remaining jail sentence of the appellant may be suspended.
Shri S.K.Kashyap, Government Advocate has opposed the prayer on the
basis of objection.
We have heard the parties at length.
Signature Not Verified
Considering the aforesaid factual backdrop and without expressing any
Signed by: SARSWATI
MEHRA
Signing time: 23-Feb-23
10:39:11 AM
conclusive opinion on merits, we deem it proper to suspend the remaining jail
sentence of the appellant. Accordingly, I.A. No.737 of 2021 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of appellant - Prakash Kumar Gondude is hereby
suspended and it is directed that the appellant be released on bail on his
furnishing a personal bond for a sum of Rs.30,000/- (Rupees Thirty
Thousand only) with one solvent surety of the like amount to the satisfaction
of the trial Court with a further direction to appear before the trial Court,
Balaghat on 24th April, 2023 and also on such other dates as may be fixed
by the trial Court in this regard during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
sm
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 23-Feb-23
10:39:11 AM
