Madhya Pradesh High Court
Irsad Urf Basu Malik vs The State Of Madhya Pradesh on 14 March, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 8360 of 2022
(IRSAD URF BASU MALIK Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 14-03-2023
Shri Shreyash Pandit - Advocate for the appellant.
Shri Pramod Pandey - Government Advocate for the respondent/State.
I.A. No.1154 of 2023 an application under Section 389(1) of the Cr.P.C
for suspension of sentence and grant of bail t o appellant Irsad urf Basu
Malik arising out of judgment dated 01.09.2022 delivered in Special SPL. Case
No.98/2020, by Special Judge (POCSO Act), Tikamgarh (M.P.) is taken up for
consideration.
T he appellant has been convicted under Section 363 of the IPC and
sentenced to undergo R.I. for 5 years with fine of Rs.3,000/-, Section 366 of
the IPC and sentenced to undergo R.I. for 07 years with fine of Rs.5000/- and
Section 6 of the POCSO Act and sentenced to undergo R.I. for 20 years with
fine of Rs.20,000/-, with default stipulations.
Government Advocate informed that victim has been served.
A s per prosecution story, on 24.01.2020, the father of prosecutrix
lodged the report that her daughter/victim aged about 17 years 6 months left for
Gulganj by a bus but did not reach the destination i.e. Bandha Tigola. It is
gathered from the bus conductor that his daughter reached Badamalhera and
from there with appellant left the place. The victim was recovered from the
possession of present appellant.
Shri Shreyash Pandit, learned counsel for the appellant submits that the
Court determined the age of victim as 17 years, 6 months on the basis of
School Admission Form and School Dakhil Kharij Register. Learned counsel
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 15-Mar-23
2:43:13 PM
for the appellant by taking this Court to the Admission Form Ex.P/16(c)
submitted that there is clear overwriting in the date of birth of the victim. The
similar discrepancy/overwriting is there in the register Ex. P/17(c). If the
statements of parents are read minutely they could not establish the age of
prosecutrix with necessary accuracy and precision. Thus, prosecution could
not establish the age of the prosecutrix and Court below has committed an error
in treating the victim as of minor.
The statement of victim recorded under Section 164 of Cr.P.C. (ex. P/4)
was relied upon to bolster the submission that it is a case of consent. She was
confronted with this statement during her deposition in the Court. Thus, by no
stretch of imagination, it can be said to be the case of sexual assault. Indeed, it
is a case of consent between the parties.
Government Advocate opposed the prayer and placed reliance on the
DNA report.
We have heard the parties on this aspect.
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, I.A No.1159 of 2023 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of appellant - Irsad urf Basu Malik 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.50,000/- (Rupees Fifty 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, Tikamgarh on
8th May, 2023 and also on such other dates as may be fixed by the trial Court
Signature Not Verified
in this regard during the pendency of this appeal.
Signed by: SARSWATI
MEHRA
Signing time: 15-Mar-23
2:43:13 PM
Certified copy as per rules.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
sm
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 15-Mar-23
2:43:13 PM
