Madhya Pradesh High Court
Sunil vs The State Of Madhya Pradesh on 5 July, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 5672 of 2023
(SUNIL Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 05-07-2023
Shri Jagat Singh - Advocate for the appellant.
Shri Akhilendra Singh - Government Advocate for respondents/ State.
Heard on I.A No.9050 of 2023 an application under Section 389(1) of the
Cr.P.C for suspension of sentence and grant of bail to appellant- Sunil arising
out of judgment dated 04.03.2023 delivered in Special Case No. SC/07/2021 by
Ist Additional Sessions Judge, Ashta District-Sehore (M.P).
The appellant has been convicted under Section 366 of the I.P.C. and
sentenced to undergo R.I. for five years with fine of Rs.3,000/- and under
Section 5(l)/6 of POCSO Act and sentenced to undergo R.I. for 20 years with
fine of Rs.7,000/- with default stipulation.
Learned counsel for the appellant by placing reliance on the prosecution
story submits that on 16.11.2020 the father of the victim (PW-1) lodged a
report in Police Station that his minor daughter is not traceable from
12.11.2020. The victim was recovered. After investigation, the challan was filed.
Learned counsel for the appellant submits that the determination of age
by Court below is erroneous. The Scholar Register was produced by PW-4.
However, he candidly admitted that the declaration form and birth certificate
etc. have not been produced by him in the Court. The statement of father (PW-
1) of the victim is relied upon to submit that he had not informed about the date
of birth to the School and the concerned officer has recorded the date of birth
as per his own assessment/imagination. The Court below has also not
determined the age with accuracy and precision. Indeed, a bald finding is given
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 7/6/2023
10:13:45 AM
that the victim was below the age of 18 years. By placing reliance on a judgment
of Supreme Court reported in (2010) 1 SCC 742 (Sunil Vs. State of
Haryana) Shri Jagat Singh - Advocate argued that in a criminal case, the
conviction of appellant cannot be based on an approximate date which is not
supported by any record. It would be quite unsafe to base conviction on an
approximate date. The ratio decidendi of this judgment was followed by
Supreme Court in (2016) 1 SCC 696 (State of Madhya Pradesh Vs. Munna
@ Shambhoo Nath).
Learned counsel for the appellant also placed reliance on order dated
16.11.2022 passed in Cr.A. No.5518/2022 (Bhagwat Prasad Prajapati Vs.
The State of Madhya Pradesh) to bolster the submission that the statutory
rules which govern the field in State of Madhya Pradesh is M.P. Date of Birth
(Entries In The School Register), 1973. A declaration needs to be given by the
parents but in the instant case, in absence of any such declaration the date of
birth recorded in the Scholar Register is doubtful. The father in his cross-
examination categorically admitted that he has been tutored by the counsel.
Apart from this, the victim and his mother (PW-3) clearly admitted that they
demanded more than Rs.40,000/- from the appellant and since appellant did not
pay the said amount, they lodged the report in Police Station. Thus, date of
birth/ age of victim could not be established with necessary clarity. Thus,
provision of POCSO (Protection of Children from Sexual Offences) Act, 2012
are not attracted. The final hearing of this appeal would take considerable time.
Thus, the remaining jail sentence of this appellant may be suspended.
The prayer is opposed by Shri Akhilendra Singh, Govt. Advocate and
submits that DNA report matched.
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We have heard the learned counsel for the parties on this aspect.
Signed by: APARNA TIWARI
Signing time: 7/6/2023
10:13:45 AM
This Court in Cr.A. No.5518/2022 (Bhagwat Prasad Prajapati Vs.
The State of Madhya Pradesh) 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.
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
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Signed by: APARNA TIWARI
Signing time: 7/6/2023
10:13:45 AM
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."
The Apex Court in the case of (2010) 1 SCC 742 (Sunil Vs. State of
Haryana) recorded as under:-
"In a criminal case, the conviction of the appellant
cannot be based on an approximate date which is not
supported by any record. It would be quite unsafe to base
conviction on an approximate date".
In view of aforesaid and without expressing any conclusive opinion on
the merits of the case, we deem it proper to suspend the remaining jail sentence
of the appellant Sunil. Accordingly, I.A No.9050 of 2023 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of appellant - Sunil 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 Ashta, District Sehore on 25 th
September, 2023 and also on such other dates as may be fixed by the trial
Court in this regard during the pendency of this appeal.
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 7/6/2023
10:13:45 AM
Certified copy as per rules.
(SUJOY PAUL) (ACHAL KUMAR PALIWAL)
JUDGE JUDGE
AT
Signature Not Verified
Signed by: APARNA TIWARI
Signing time: 7/6/2023
10:13:45 AM
