Guddu @ Mukaam Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 3552 MP

                                       1
            IN THE HIGH COURT OF MADHYA PRADESH
                          AT INDORE
                             CRA No. 720 of 2022
               (GUDDU @ MUKAAM SINGH Vs THE STATE OF MADHYA PRADESH)

Dated : 28-02-2023
      Shri Nandlal Tiwari, learned counsel for the appellant.

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

None for the prosecutrix despite intimation.

Heard on the question of admission.

Admit.

Also, heard on I.A.No.9226/2022, 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 [email protected] Mukham Singh.

The trial Court has convicted the appellant vide judgment of conviction and order of sentence dated 22.12.2020 passed by Addl. Sessions Judge, Kukshi, District- Dhar in S.C. No.12/2019 as under:-

       Conviction/                                           Imprisonment in
                         Imprisonment       Fine amount
     Section and Act                                           lieu of fine

      363 of the IPC         5 years          Rs.1,000/-        5 months RI

     366(A) of the IPC       5 years          Rs.1,000/-        5 months RI

     376(1) of the IPC         Nil               Nil                   Nil

     376(2) of the IPC         Nil               Nil                   Nil

      3/4 of POCSO
                            10 years          Rs.5,000/-        2 months RI
         Act,2012

      5/6 of POCSO
                            20 years          Rs.5,000/-        2 months RI
         Act,2012

As per prosecution case, On 20.11.2018 at about 3 p.m. to 4:30 p.m. the victim was returning to her home from Antarsuma alongwith her younger sister

(P.W.-3) and her friend (P.W.-4). When they were standing at Devada Phaate, appellant came on motorcycle, caught hold the prosecutrix and made her sit on motorcycle and took her to Maalpuri Jungle. The appellant committed rape with her repeatedly and kept her with him all night. On the next day morning the prosecutrix ran away and came to her house and she told the incident to her family members. An FIR was lodged on 21.11.2018 at police station Dahi, District-Dhar. On the basis of information given by prosecutrix (P.W.-1).

Learned counsel for the appellant submits that at the time of incident the prosecutrix was more than 18 years of age. Assistant Teacher (P.W.-14) has been examined by prosecution and he proved Class-I scholar register (Exhibit-

P/13) of the prosecutrix but he has admitted that he has not made any entry in the scholar register therefore, his statement is not reliable. The prosecutrix was consenting party to accompany the appellant therefore, he cannot be convicted for the offence. Further it is also submitted that the appellant is in custody since 04.03.2019. Final hearing of this appeal is not possible in near future therefore, it is prayed that the remaining jail sentence of the appellant may be suspended and he may be released on bail.

Per Contra, learned Govt. Advocate for the respondent/State has opposed the prayer of the appellant and submits that on the ground of scholar register and the statement of father of the prosecutrix (P.W.-2) learned trial Court has properly accessed the age of the prosecutrix as 13 years 2 months and 9 days on the date of incident. At the time of incident the prosecutrix was below 14 years therefore, her consent is immaterial. Further it has also been submitted that the prosecutrix (P.W.-1) supported the case of the prosecution. Her statement is also supported by her younger sister (P.W.-3), her friend (P.W.-4) and as per statement of Dr. Dev Kumari Devda (P.W.-10) at the time

of medical examination it was found that hymen was ruptured and there was swelling in the vagina. Hence, statement of prosecutrix (P.W.-1) is supported by the statement of Dr. Dev Kumari Devda (P.W.-10) statement of prosecutrix is further supported by DNA report (Exhibit-P/22) 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.

Considering the statements of prosecutrix (P.W.-1), her younger sister (P.W.-3), her friend (P.W.-4) and father of the prosecutrix (P.W.-2) at this stage, we are not inclined to suspend the jail sentence of the appellant. Accordingly, I.A.No.9226/2022 is rejected.

List for final hearing in due course.

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

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Date: 2023.03.01 13:36:01
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