Madhya Pradesh High Court
Aneesh Khan vs The State Of Madhya Pradesh on 17 July, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 10495 of 2022
(ANEESH KHAN Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 17-07-2023
Shri Ashish Sinha - Advocate for the appellant.
Shri A.N. Gupta - Government Advocate for the respondent/State.
Heard on IA No. 21520/2022- an application under Section 389(1) of
the Cr.P.C. for suspension of remaining jail sentence and grant of bail to
appellant - Aneesh Khan arising out of judgment dated 03.11.2022 delivered
in Special Case No.10/2020 by Special Judge (POCSO Act) District Sehore
T he appellant has been convicted under Section 376 (3) of IPC and
sentenced to undergo R.I. for 20 years with fine of Rs.1000/-, and Section
5L/6 of POCSO Act in place of 376(2)(n) of IPC and sentenced to undergo
R.I. for 20 years with fine of Rs. 1,000/- with default stipulations.
Learned counsel for the State informed that victim is served.
As per prosecution story, the victim, aged about 16 years at around 9:00
PM on 13.01.2020, went to answer the call of nature behind her house from
where appellant forcibly took her to the forest of Kagrabad. She recognized the
assailant as appellant. Appellant sexually assaulted her on more than one
occasion. Father of Nippa Khan located her at around 5:00 AM through torch
light and then appellant fled away.
Learned counsel for the appellant submits that appellant produced the
original birth certificate of victim issued on 24.08.2003 in which date of birth of
victim is mentioned as 05.02.2000. This original certificate is available on the
record as Ex.D/1. This was issued by the statutory competent authority. Court
below disbelieved it for incorrect reason namely: (i) how appellant could lay his
hands on this certificate and (ii) the father of victim in his Court statement
deposed that he solemnized marriage in the year 2002. Shri Sinha, learned
counsel for the appellant submits that if original certificate was produced by the
appellant, it could not have been disbelieved merely on the ground that it was
produced by him. At best, court could have verified that genuineness of this
document from the issuing authority. The ocular evidence of victim's father
cannot prevail over the method of determination of age mentioned in Section 94
of Juvenile Justice Act and certificate issued in pursuance thereof. Thus,
prosecution could not establish with necessary clarity that victim was a minor.
If birth certificate was there, as per Section 94 aforesaid, the admission register
cannot get preference over the birth certificate.
By taking this Court to the FIR registered in Kotwali, FIR No. 9/20
registered in Shyampur, statement of victim recorded under Section 164 of
Cr.P.C and 161 of Cr.P.C. and also her statement recorded in the Court, it is
strenuously contended that in the FIR registered in Kotwali, she stated that she
was taken by the appellant from her house whereas in her statement under
Section 164 of Cr.P.C. she stated that appellant forcibly taken her from the
forest. Her 161 Statement takes a different turn wherein she again stated that she
was taken forcibly by the appellant from her house. Her statement recorded in
the Court is in tune with her statement recorded under Section 161 of Cr.P.C.
but contradicts her statement recorded under Section 164 of Cr.P.C. When she
was confronted with her previous statement, no plausible explanation came
forward.
Shri Sinha, counsel for the appellant Submits that in aforesaid
documents, the persons who reached at the place of incident are also different.
In FIR registered in Kotwali, name of father of Nippa Khan is mentioned
whereas in FIR lodged in Shyampur, Sareef Khan, neighbour of Nippa Khan
name is mentioned. In statement recorded under Section 164 of Cr.P.C, it is
mentioned that an unknown person came and because of that she could rescue
herself. The evidence in the Court and statement under 161 of Cr.P.C. also
narrates a different story. Thus, story of prosecution is full of flaws and not
trustworthy. There is a delay in lodging the FIR. It appears to be a case of
consent and appellant is falsely arraigned under the POCSO Act.
The prayer is opposed by learned State counsel.
Considering the aforesaid factual backdrop and without expressing any
conclusive opinion on merits, we deem it proper to suspend the remaining jail
sentence of the appellant.
Accordingly, aforesaid IA is allowed.
Subject to depositing the fine amount, if not already deposited, the
remaining jail sentence of the appellant -Aneesh 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 concerning trial court S e ho re on
09.10.2023 and also on such other dates, as may be fixed by the trial court in
this regard during the pendency of this appeal.
C c as per rules.
(SUJOY PAUL) (ACHAL KUMAR PALIWAL)
JUDGE JUDGE
L.R.
Digitally signed by LALIT
SINGH RANA
Date: 2023.07.18 16:32:11
+05'30'
