Madhya Pradesh High Court
Chandrabhan Parihar vs The State Of Madhya Pradesh on 28 February, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 10561 of 2022
(CHANDRABHAN PARIHAR Vs THE STATE OF MADHYA PRADESH)
Dated : 28-02-2023
Shri Anand Kumar Gupta - Advocate for appellant.
Smt. Anjali Gyanani- Public Prosecutor for respondent-State.
Heard on I.A. No. 17677 of 2022, which is first application under
Section 389 (1) of Cr.P.C. for suspension of sentence and grant of bail
moved on behalf of appellant-Chandrabhan Parihar.
Appellant stood convicted under Section 363 of IPC and sentenced
to undergo three years' rigorous imprisonment with fine of Rs.3,000/- and
under Section 366 of IPC and sentenced to undergo seven years' rigorous
imprisonment with fine of Rs.5,000/- and under Section 5 (B)/6 of POCSO
Act and sentenced to undergo twenty years' rigorous imprisonment with
fine of Rs.20,000/- with default stipulations vide judgment of conviction
and order of sentence dated 04/11/2022 passed by Special Judge, POCSO
Act, 2012 Datia (M.P.) in Sessions Trial No.40/2019.
As per prosecution story, the father of prosecutrix lodged a missing
report that the proseuctrix was missing since 04.08.2019. Thereafter on
22.08.2019, her statement was recorded under Section 164 of Cr.P.C
wherein she stated to have accompanied the appellant as she was in love
with him. Thereafter she was sexually abused on many occasions. She was
also kept in the house of sister of appellant. On such allegations, FIR was
lodged and investigation started. The challan was filed. The case was
committed to the Sessions Court. The Sessions Court upon evaluation of
evidence placed on record has convicted the appellant and sentenced as
aforesaid.
Learned counsel for appellant submits that the appellant has
suffered jail incarceration of 4 months during trial and thereafter from the
date of impugned judgment till date. Shri Gupta while taking exception to
the impugned judgment inter-alia submits that the Sessions Court ignored
the crucial evidence i.e. the statement of the prosecutrix recorded under
Section 164 of Cr.P.C which suggests that she had developed intimate
relationship with the appellant out of her free will, as she was in love with
him, therefore, the allegation of abduction as against appellant was false
and fabricated. That apart, the deposition of father of prosecutrix (PW-3)
suggests that his marriage was solemnized 30 years ago from the date of
the depositions in the Court and son was born about two years after
marriage and the daughter/prosecutrix was born one and a half years
thereafter. Under such circumstances, if her age is ascertained with such
evidence, she was more than 20 years of age as on the date of the alleged
incident. Even otherwise, the impugned judgment suffers from perversity
of approach in the matter of appreciation of evidence. The appellant is
innocent and has been falsely implicated. There is no likelihood of early
hearing of appeal and hence, prays for suspension of sentence and grant
of bail to appellant.
Per contra, State counsel opposes the application and supports the
impugned judgment with submission that the FSL report is positive. The
prosecutrix was minor. The factum of her abduction and sexual abuse are
well evident from the evidence placed on record, therefore, no exception
can be taken in the matter of suspension of sentence. However, she fairly
submits that in the statement under Section 164 of Cr.P.C (Exhibit P-2),
the prosecutrix has expressed her acquaintance with the appellant and
intimate relationship out of love and affection.
Up o n hearing counsel for the parties, though this Court refrains
from commenting upon rival contentions touching merits of the case but
regard being had to the fact that the appellant has suffered jail incarceration
of 4 months during trial and thereafter from the date of impugned judgment
till date and he has no criminal antecedents and there is no likelihood of
early hearing of the appeal, in the obtaining facts and circumstances, this
Court is inclined to grant benefit of suspension of sentence and grant of
bail to appellant.
Accordingly, I.A. No. 17677 of 2022 stands allowed and it is
directed that the jail sentence of appellant-Chandrabhan Parihar shall
remain suspended during pendency of the present appeal and he be
released on bail on his furnishing a personal bond in the sum of
Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in the
like amount to the satisfaction of the trial Court. Appellant is directed to
appear before the Registry of this Court first on 25.04.2023 and on other
subsequent dates as may be fixed in this behalf with following further
conditions:-
( i ) the concerned jail authorities are directed that
before releasing the present appellant, his medical
examination be conducted through the jail doctor and
if it is prima facie found that he is having any
symptom of COVID-19, then the consequential
follow up action or any further test required be
undertaken immediately. If not, present appellant
shall be released on bail in terms of the conditions
imposed in this order;
(ii) violation of conditions, State is free to apply for
cancellation of bail.
Accordingly, the I.A. stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of deciding
the instant I.A. and shall have no bearing on the merits of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Aman
AMAN TIWARI
2023.03.01
11:47:10 +05'30'
