Gopal vs State Of M.P.
2023 Latest Caselaw 4033 MP

       IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                            Cr.A.No.415/2022
                 (Gopal S/o Govardhan Vs. State of M.P.)

Indore : Dated 14.3.2023
      Shri Sanjay Sharma, learned counsel for the appellant.
      Shri K.K.Tiwari, learned counsel for the respondent/State.

Despite service of notice, prosecutrix is not present. ___________________________________________________________ Heard on the question of admission.

The appeal is admitted for hearing.

Also heard on I.A. No.3590/2022, which is first application filed under Section 389 of Cr.P.C. for suspension of jail sentence and grant of bail moved on behalf of the appellant-Gopal.

Learned Trial Court has convicted the appellant under Section 363 of IPC and sentenced to undergo five years' RI with fine of Rs.1,000/-, under Section 366-A of IPC and sentenced to undergo ten years' RI with fine of Rs.1,000/-, under Section 376(2)(n) of IPC and sentenced to undergo ten years' RI with fine of Rs.1,000/- and under Section 5(l)/(6) of the Protection of Children from Sexual Offences Act and sentenced to undergo twenty years' RI with fine of Rs.1,000/-, with default stipulation, vide judgment of conviction and order of sentence dated 7.12.2021 passed by the Special Judge (Protection of Children from Sexual Offences Act), Ratlam in Special S.C. No.10/2019.

As per prosecution case, at the time of incident the prosecutrix was aged about 17 years. The present appellant and the prosecutrix known each other prior to the incident and there was love affection between them. At the time of incident the prosecutrix was at home of her maternal uncle in village Mangrol. On 10.11.2018 at about 7.30 PM the appellant came in village Mangrol and prosecutrix went with the appellant from Mangrol to Karmadi Road. Thereafter, they went to Runija by bus. Both of them lived IN THE HIGH COURT OF MADHYA PRADESH AT INDORE Cr.A.No.415/2022 (Gopal S/o Govardhan Vs. State of M.P.)

together for about one month in a hut. During this period appellant had committed rape with her repeatedly. On 1.12.2018 the Police has recovered the prosecutrix.

Learned counsel for the appellant submits that the learned trial Court has not properly assessed the age of the prosecutrix. The prosecution has not proved scholar register of the prosecutrix as required by law, parents of the prosecutrix had not stated date of birth of the prosecutrix, therefore, it is not proved that at the time of incident the prosecutrix was below 18 years of age. The prosecutrix was major and she is consenting party, therefore, the offence is not made out against the appellant. The appellant was in custody since 1.12.2018 to 4.4.2019. Thereafter, he is in custody from the date of judgment i.e. 7.12.2021. Final hearing of this appeal is not possible in near future therefore, it is prayed that the remaining sentence may be suspended and the appellant may be released on bail.

Learned Government Advocate for the respondent/State opposes the prayer of appellant and submits that the learned trial Court has properly considered the evidence relating to date of birth of the prosecutrix as per scholar register Ex.P/10 and mark sheet of Class III Ex.P/11. On the date of incident the prosecutrix was aged about 17 years and one month. Therefore, at the time of incident the prosecutrix was a minor girl, hence, her consent is immaterial. The prosecustrix supported the case of prosecution in her deposition. Therefore, application for suspension of sentence and grant of bail is liable to be rejected.

We have heard learned counsel for the parties and perused the record.

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE Cr.A.No.415/2022 (Gopal S/o Govardhan Vs. State of M.P.)

Looking to the facts and circumstances of the case and considering the evidence available on record against the appellant, at this stage we are not inclined to grant suspension of jail sentence. I.A.No.3590/2022 is accordingly rejected.

List the matter for final hearing in due course.

                                                           (S.A.Dharmadhikari)                     (Prakash Chandra Gupta)
                                                                   Judge                                     Judge



           Patil
Digitally signed by SHAILESH PATIL
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH

BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=837fe9c27fdece0f7f4ec7150827760f68beff4d7 09b9f59439e1d51ace79637, pseudonym=663F17CE27594B9E54AA3BAB05B4295B1 55F651B, serialNumber=3E01C00D600649CCA41365593337DEF5 3CC3D6A3E63493017489D6D6B6975E7F, cn=SHAILESH PATIL Date: 2023.03.15 10:48:41 +05'30'