Madhya Pradesh High Court
Akhtar Khan vs The State Of Madhya Pradesh on 14 July, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 1152 of 2023
(AKHTAR KHAN Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 14-07-2023
Shri F.A. Shah- Advocate for the appellant.
Dr. Anjali Gyanani - Public Prosecutor for respondent/State.
Heard on I.A. No.7003 of 2023, which is first application under Section
389(1) Cr.P.C. filed on behalf of appellant-Akhtar Khan seeking suspension
of sentence and grant of bail.
Appellant-Akhtar Khan stood convicted under Section 4(2) of
POCSO Act and sentenced to undergo 20 years' R.I. with a fine of Rs.2,000/-
and under Section 9 of Prohibition of Child Marriage Act and sentenced to
undergo 2 years' R.I with a fine of Rs.1,000/- with default stipulations vide
judgment of conviction and order of sentence dated 15/12/2022 passed by
Special Judge (POCSO Act), Shivpuri (M.P.) in Special Case No.124/2019.
Present appellant so far has undergone incarceration of about 17 months
in toto, as transpired during the course of hearing.
Co-accused/Appellant No.1 in Criminal Appeal No.838 of 2023-Shakil
Khan is the biological father of the prosecutrix as after the demise of his first
wife and mother of the prosecutrix, he married to co-accused Shehnaz Bano.
As per prosecution story, the prosecutrix claiming herself to be 14 years
of age, on 20/09/2019, lodged an FIR to the effect that for the last 4-5 years
s ince the time her mother expired, she was ill-treated by her step-mother
Shehnaz Bano off and on. She, therefore, had left the house and started living
with her grand-parents. Thereafter, on 1/1/2019, while she was staying with her
maternal uncle's house, step-mother Shehnaz came there and against her wishes
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Signed by: PAWAN
DHARKAR
Signing time: 7/14/2023
8:58:14 PM
brought her back. Thereafter, she started searching for the match though she
was not major. She manipulated her marriage (Nikah) with accused/appellant
Akhtar and Farukh Khan had reduced in writing the process of Nikah. After so-
called solemnization of marriage (Nikah), she was subjected to forcible sexual
abuse against her wishes by Akhtar from 24/08/2019 to 28/08/2019. Thereafter,
accused/appellant Akhtar called her grand -parents to the Kota Court and
whereafter, signing of certain documents, she was given in custody of her
grand-parents. Thereafter, she came back to her grand-parents' house from
Kota. It is alleged that appellant Akhtar had also threatened the prosecutrix with
dire consequences, if she divulged the factum of marriage and that of sexual
abuse. In the aforesaid backdrop, the prosecutrix filed the complaint and the
same was registered at Crime No.213/19. Based thereupon, investigation was
set in motion. The Investigating Officer, upon collection of incriminating
evidence, filed challan. The Special Court upon critical evaluation of the
evidence placed on record convicted and sentenced the present appellant as
aforesaid.
Learned counsel for the appellant while taking exception to the impugned
judgement submits that the prosecutrix in her statement before the Court has
clearly stated that her date of birth is 11/10/2000 as recorded in Aadhar Card
and therefore, she was major as on the date of incident. However, the trial Court
in Para-20 of the judgement, ignored the same and relied upon her date of birth
as per the certificate of the Municipal Corporation, Kota (Ex.P/10) as
11/10/2005. That apart, she has turned hostile and belied the story of
prosecution. Shakil Khan, co-convict/appellant No.1 in Criminal Appeal No.838
of 2023, has already been admitted to suspension of sentence and grant of bail
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vide order dated 27.04.2023. On such grounds, learned counsel prays for
Signed by: PAWAN
DHARKAR
Signing time: 7/14/2023
8:58:14 PM
suspension of sentence and grant of bail to the present appellant.
Per contra, learned Public Prosecutor for respondent/State, while
opposing the application supporting the judgment impugned submits that
looking to the gravity of offence, no exception can be taken in the matter of
suspension of sentence and grant of bail to the present appellant.
Upon hearing learned 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 co-convict/appellant No.1 -Shakil Khan in Criminal
Appeal No.838 of 2023 has already been admitted to suspension of sentence
and grant of bail vide order dated 27.04.2023, the present appellant has so far
undergone incarceration of 17 months in toto coupled with the fact that appeal
is of the year 2023 and there is no likelihood of its early hearing in near future
and therefore, in the obtaining facts and circumstances, we hereby extend the
benefit of suspension of sentence and grant of bail to present appellant-Akhtar
Khan.
Accordingly, I.A.7003 of 2023 stands allowed and it is directed that the
jail sentence of appellant-Akhtar Khan shall remain suspended during
pendency of present appeal and he shall be released on bail, subject to
verification of amount of fine being deposited and 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-Akhtar Khan is directed to appear before the Registry of this Court
first on 13.09.2023 and on other subsequent dates as may be fixed by Office
in this behalf.
Observations on facts, if any, are only for the purpose of disposal of the
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Signed by: PAWAN
DHARKAR
Signing time: 7/14/2023
8:58:14 PM
application for suspension of sentence and shall have no hearing on the merits
of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
pd
Signature Not Verified
Signed by: PAWAN
DHARKAR
Signing time: 7/14/2023
8:58:14 PM
