Durga Selar vs The State Of Madhya Pradesh
2023 Latest Caselaw 11322 MP

                                  1
              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                          CRA No. 2480 of 2022
                  (DURGA SELAR Vs THE STATE OF MADHYA PRADESH)

Dated : 20-07-2023
      Shri Anand Gupta, learned counsel for the appellant.

      Shri P.S. Raghuvanshi, learned Public Prosecutor for the State.
      Heard on I.A. No.11263 of 2023, which is the second application under
Section 389(1) of Cr.P.C seeking suspension of sentence and grant of bail
moved     on behalf of appellant - Durga Selar. First application (IA No.
6087/2022) was dismissed as withdrawn vide order dated 07.12.2022.

      Appellant Durga Selar stood convicted under Section 366 of IPC and
sentenced to two years' RI with fine of Rs.500/-; under Section 376(3) of IPC
and sentenced to twenty years' RI with fine of Rs.2000/- and under Section 3/4
of POCSO Act and sentenced to ten years' RI with fine of Rs.1000/- with
default stipulations vide judgment o f conviction and order of sentence dated
24.02.2022 by Special Judge (POCSO Act) District Guna in Special Case
No.86/2018.
      Present appellant has so far undergone incarceration of about one and
half years.

      As per prosecution story, father of the prosecutrix lodged a complaint
that on 16.06.2018 early in the morning at 4 o'clock while the prosecutrix had
gone to respond the nature's call, she did not turn up. Thereafter, extensive
search was undertaken but to no avail. Under such circumstances, a missing
report was filed. She was recovered on 19.07.2018. Her statements under
Sections 161 and 164 of CrPC were recorded. After collection of incriminating
material including DNA report, challan was filed. The Sessions Court upon
                                    2
critical evaluation of the evidence placed on record convicted and sentenced
present appellant as referred above.
      Learned counsel for the appellant submits that the appellant is innocent
and he has falsely been implicated. The prosecutrix albeit has not mentioned the
name of the appellant in the statements recorded under Sections 161 and 164
CrPC in the context of allegations made, however, during ocular evidence she
has supported the story of prosecution. Her testimony, under such
circumstances, is highly doubtful. There is no clinching evidence available on
record related to the age of the prosecutrix, who is styled as minor. On the
contrary, the prosecutrix herself has stated her age as 15 years in her statement

under Section 161 CrPC, whereas 17 years in statement under Section 164
CrPC and before the trial Court she again stated her age as 15 years. Though
the issue relating to her age and date of birth is well discussed in para 10 of the
impugned judgment but the findings so recorded are pregnable in nature for
want of conclusive evidence to support that she was 15 years of age at the time
of commission of offence. Hence, in the obtaining facts and circumstances, the
appellant be extended benefit of suspension of sentence and grant of bail.
      Per contra, learned Public Prosecutor for the respondent-State opposes

the application with submissions that even if the prosecution has not stated anything against the appellant in her statements recorded under Sections 161 and 164 of CrPC, but in ocular evidence she has supported the case of prosecution. As the trial Court has found in para 10 of the impugned judgment that the prosecutrix was minor at the time of commission of crime, therefore, no illegality can be attributed to the finding so recorded for the purpose of suspension of sentence.

Upon hearing learned counsel for the parties, though this Court refrains

from commenting upon rival contentions so advanced touching merits of the case, regard being had to the fact that present appellant has already suffered incarceration of about one and half years, looking to the facts and circumstances of the case, he is held entitled for suspension of jail sentence and grant of bail.

Accordingly, we allow IA No.11263 of 2023 and it is directed that the jail sentence of appellant Durga Selar shall remain suspended during pendency of 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 subject to verification of factum regarding deposit of fine amount. Appellant is directed to appear before the Registry of this Court first on 22.9.2023 and on other subsequent dates as may be fixed in this behalf Accordingly, the IA 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)                                    (MILIND RAMESH PHADKE)
     JUDGE                                                 JUDGE

yog




                           YOGESH
                           VERMA
                           2023.07.21
        VALSALA
        VASUDEVAN
        2018.10.26
        15:14:29 -07'00'
                           12:42:13
                           +05'30'