Madhya Pradesh High Court
Sohil @ Shahid Khan vs The State Of Madhya Pradesh on 28 February, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 6257 of 2021
(SOHIL @ SHAHID KHAN Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 28-02-2023
Shri S.N.Pandey - Advocate for the appellant.
Shri A.N. Gupta - Government Advocate for the respondent/State.
I.A.No.18728/2021 an application under Section 389(1) of the Cr.P.C
for suspension of sentence and grant of bail to appellant Sohil @ Shahid Khan
arising out of judgment dated 15.09.2021 delivered in Special Case No.39/2019,
by Special Judge (POCSO Act), Tikamgarh (M.P.) is taken up for
consideration.
The appellant has been convicted under Sections 376 (2)(Jha) of the IPC
and 5/6 of the POCSO Act and sentenced to undergo R.I. for ten years with
fine of Rs.1,000/- respectively, Section 3 (2)(5) of SC/ST Act and sentenced to
undergo R.I. for life time with fine of Rs.10,000/- with default stipulations.
Learned counsel for the appellant submits that as per prosecution story,
the complainant Nandu Ahirwar lodged a written complaint in Police Station
Baldevgarh on 12.02.2019 by stating that his minor daughter left the house and
did not return. A report against an unknown person was lodged. The victim was
recovered from the possession of appellant. Learned counsel for the appellant
submits that the statement of prosecutrix (PW-3) shows that she on her own
volition went with the appellant. She stayed with appellant for about 13 days at
New Delhi. During her travel from her native place to Delhi, she had several
opportunities to raise alarm or seek help of public but she did not ask for any
such help which shows that she was a consenting party. Although, DNA report
is against the appellant, in a case of consent, the said DNA report pales into
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 01-Mar-23
4:56:36 PM
insignificance, more so when determination of age of the prosecutrix is
incorrect.
By taking this Court to the statement of Headmaster (PW-11) who
produced the School Register. Shri Pandey submits that in Madhya Pradesh
there are Statutory Rules which prescribes method to record a date of birth. On
a specific cross examination, the Headmaster (PW-11) deposed that he has not
produced the said Admission Form which was required to be filled up by
parents mentioning the date of birth. This Court after considering the judgment
of Supreme Court in the case of State of Madhya Pradesh Vs. Munna @
Sambhoo Nath (2016) 1 SCC 696 granted benefit of suspension of sentence
in CRA No.5518/2022. The present appellant deserves similar treatment.
The prayer is opposed by learned Government Advocate on the basis of
the objection. He informed that victim has already served.
This Court in CRA No.5518/2022 (Bhagwat Prasad Prajapati Vs. State of
M.P.) recorded as under :-
"Shri Fakhruddin, further submits that determination
of age of the victim by the court below is bad in law. The
age is determined on the basis of Admission Register. In
State of Madhya Pradesh, the Government has introduced
statutory rules governing the field namely the M.P. Date of
Birth ( Entries In The School Register) Rules, 1973.
Heavy reliance is placed on Rule 3 & 4 to bolster the
submission that unless the date of birth is recorded in the
manner prescribed in the aforesaid Rules, date of birth
cannot be accepted which is recorded in the Admission
Register. Cross-examination of Ramvishwas Verma (PW-
7) Assistant Master, who produced the Register before
the Court below is relied upon who did not state that
parents of the child had given any such declaration as
required as per Rule 3 of the said rules. In absence
thereof, the date of birth so recorded has no evidentiary
value.
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 01-Mar-23
4:56:36 PM
Learned counsel for the appellant, in support of his
contention, placed reliance on the judgment of Supreme
Court passed in the case of State of Madhya Pradesh Vs.
Munna @ Shambhoo Nath (2016) 1 SCC 696. For this
purpose, the judgment of Supreme Court in Rajak
Mohammad Vs. State of Himachal Pradesh (2018) 9 SCC
248 and Division Bench judgment of this Court in
M.CR.C. No.2340/2016 ( State of M.P. Vs. Salman
Khan) were pressed into service. It is submitted that Dr.
A.K. Saraf (PW-11) who has conducted the Ossification
Test deposed that victim was between the age of 18-19
years. The victim herself deposed that at the time of
incident she was about 16 years of age. Her mother (PW-
2) expressed her inability to state whether she is aged
about 27 years. Thus, there are different date of births
which could be gathered on the basis of aforesaid
statements and documents. Thus, prosecution could not
establish its case with accuracy and precision regarding
date of birth of the victim. Thus, by no stretch of
imagination, it can be said that she was less than 16 years
of age or of 14 years of age. Apart from this, the factual
matrix shows that she was a consenting party and in that
event the appellant was erroneously held to be responsible
for committing offences in question, the final hearing of
this appeal will take time, the remaining jail sentence of the
present appellant may be suspended.
Prayer is opposed by Shri Akhilendra Singh,
learned Govt. Advocate on the basis of objection.
We have heard the parties and perused the record.
Considering the aforesaid factual backdrop, in our
opinion a case is made out for suspension of sentence.
Accordingly, without expressing any opinion on merits of
the case, we deem it proper to suspend the remaining jail
sentence of the appellant. Accordingly, I.A. No.14753 of
2022 is allowed."
Considering the aforesaid and without expressing any conclusive opinion
on merits, we deem it proper to suspend the remaining jail sentence of the
appellant. Accordingly, I.A.No.18728/2021 is allowed.
Subject to depositing the fine amount (if not already deposited), the
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Signed by: SARSWATI
MEHRA
Signing time: 01-Mar-23
4:56:36 PM
remaining jail sentence of appellant Sohil @ Shahid Khan 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,
Tikamgarh on 8 th of May, 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: 01-Mar-23
4:56:36 PM
