Madhya Pradesh High Court
Usman Khan vs The State Of Madhya Pradesh on 12 October, 2023
Author: Rohit Arya
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 8700 of 2022
(USMAN KHAN Vs THE STATE OF MADHYA PRADESH)
Dated : 12-10-2023
Shri F.A.Shah - Advocate for the appellant.
Shri Rajiv Upadhyay - Public Prosecutor for the State.
Heard on IA No. 13236 of 2023, second application under Section 389
Cr. P.C. filed on behalf of the appellant seeking suspension of sentence and
grant of bail.
Appellant stands convicted under Section 376(2) (n) IPC and sentenced
to undergo 10 years RI with fine of Rs. 10000/- and under Section 506-II of
IPC and sentenced to 1 year's RI with fine of Rs.1000/-, with default
stipulations respectively vide judgment of conviction and order of sentence
dated 09.09.2022 passed by Special Judge (POCSO Act) and Thirteenth
Additional Sessions Judge, Gwalior in Sessions Trial No.348/2019.
Appellant so far has undergone 4 years and half month's jail
incarceration.
As per prosecution story, an FIR was lodged on 22.06.2019 that the
prosecutrix, aged about 17 years, with her family was living in the
neighbourhood of the present appellant, aged about 40 years. The prosecutrix
and appellant were known to each other. On fateful day, i.e., on 23.3.2019 the
appellant is alleged to have taken the prosecutrix with him under the pretext of
introducing her to his sister. No sooner they entered the house, the appellant is
alleged to have bolted the main door from behind. The prosecutrix was forced
to strip of her clothes and subjected to sexual abuse and intercourse against her
wishes. After commission of the alleged act the appellant had threatened her
with dire consequences if she has divulged or disclosed the said incident to
anyone. She was shocked and out of fear she could not muster the courage and
inform about the incident to her parents. Under such situation, the appellant is
alleged to have repeated the shameful act with the prosecutrix on following days
up to 19.04.2019 intermittently. However, no sooner did she disclose the above
fact the written complaint was lodged as aforesaid. Upon completion of
investigation, challan was filed. Case was committed for sessions trial. The
Sessions Court on appreciation of evidence placed on record convicted and
sentenced the present appellant as mentioned above.
Learned counsel for the appellant while taking exception to the impugned
judgment, besides referring to the substantial gap between the alleged incident
and lodging of FIR, also submits that there was no DNA report and in the MLC
report no firm opinion was given. The prosecutrix was not examined during trial
and the entire case hinges upon the alleged written complaint (Ex. P/1). The
appellant has already undergone four and half years' jail incarceration. The
appeal is of the year 2022 and there is no likelihood of early hearing of the
appeal. Under such circumstances, prayer is made for suspension of sentence
and grant of bail to the appellant.
Per contra, Shri Upadhyay, learned Public Prosecutor opposed the
application while supporting the impugned judgment with the submission that it
is a heinous crime of sexual exploitation of a minor girl by aged person
overpowering the innocent child. The ocular evidence of the parents of the
prosecutrix supports the case of the prosecution. Hence, no exception can be
taken in the matter of suspension of sentence and grant of bail to the appellant.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions touching merits of the case but
looking to the period of incarceration suffered by the present appellant, i.e.,
four and half years out of 10 years, and the fact that appeal is of the year 2022
and there is no likelihood of early hearing of this appeal in near future, we are of
the view that appellant deserves to be and is accordingly extended the benefit of
suspension of sentence and grant of bail.
Accordingly, it is directed that the jail sentence of present appellant shall
remain suspended 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 is directed to appear
before the Registry of this Court first on 13-12-2023 and on other subsequent
dates as may be fixed by Office in this behalf.
Accordingly, aforesaid I.A.No.13236 of 2023 stands allowed and
disposed of.
Observations on facts, if any, are only for the purpose of disposal of the
application for suspension of sentence and shall have no hearing on the merits
of the appeal.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
yog
YOGESH VERMA
2023.10.12
17:34:00 +05'30'
