Madhya Pradesh High Court
Child In Conflict With Law Through ... vs The State Of Madhya Pradesh on 23 September, 2023
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 10440 of 2023
(CHILD IN CONFLICT WITH LAW THROUGH HIS GUARDIAN/ FATHER Vs THE STATE OF MADHYA
PRADESH)
Dated : 23-09-2023
Ms. Ayushi Vyas, learned counsel for the appellant.
Mr. N.S. Tomar, learned Public Prosecutor for the respondent - State.
Heard on I.A. No.15174/2023, which is first application under Section
389(1) of Cr.P.C. moved on behalf of appellant No.1 - Child IN Conflict with
law seeking suspension of sentence and grant of bail.
Appellant stands convicted under Section 450 of IPC and sentenced to
undergo 05 years RI with fine of Rs.500/-, under Section 328 of IPC and
sentenced to undergo 05 years RI with fine of Rs.500/- and under Section 6 of
POCSO Act read with Section 376(D) of IPC and sentenced to undergo 20
years' RI with fine of Rs.50,000/- with default stipulation vide judgment of
conviction and order of sentence dated 01.08.2023 passed by the Special Judge
(POCSO Act), Bhind (Madhya Pradesh) in Special Case (ST No.) No.80/2021.
As per prosecution story, while parents of the prosecutrix had gone away
to attend a marriage, her brother and sister were sleeping on the terrace and she
was sleeping in the courtyard on the ground floor, on 11.05.2019, at about 12 in
the intervening night, accused - Jitendra, Rohit and present appellant (juvenile)
entered the house from terrace area and caught hold the prosecutrix. She was
dragged in a room, where she was forced to consume liquor, while present
appellant-(juvenile) and another accused were standing outside the room. Main
accused Jitendra committed rape on the prosecutrix. Accordingly, case has
been registered. Upon filing of challan, the case was committed for trial to the
Sessions Court. The Sessions Court upon critical evaluation of the evidence
placed on record has convicted and sentenced the appellant as referred above.
Learned counsel for the appellant at the first instance fairly submits that
the appellant (juvenile) has already suffered the jail incarceration for almost three
years. There is no allegation of either violating the personal liberty of the
prosecutrix or committing rape. Instead, the sole allegation against him is that he
entered the house and was standing outside the room, where she was sexually
abused by the main accused Jitendra. As such the conviction of the appellant
under Section 376(D) of IPC and 5(G) and 6 of POCSO is fully unwarranted
and based on surmises and conjecture. The appellant even otherwise, has no
criminal antecedents. It is further submitted that co-accused Rohit has already
been granted bail by this Court and the case of the present appellant is akin to
his case. Hence, prays for suspension of sentence and grant of bail.
Per contra, learned counsel for the respondent-State opposes the
application supporting the order impugned with the submission that the
appellant and two accused persons had entered the house of the prosecutrix
with common intention of commission of rape. The active participation is well
specific from the story of the prosecution and the evidence placed on record
during trial. Hence, no exception can be taken in the matter of suspension of
sentence and grant of bail.
Upon hearing counsel for the parties, though this Court refrains from
commenting upon rival contentions touching merits of the matter but looking to
nature of allegation and since the appellant is having no criminal record, the
application deserves to be allowed. Accordingly, we allow the application and
it is directed that the jail sentence of the appellant - (juvenile) shall remain
suspended and he be released on bail on his furnishing a personal bond in the
sum of Rs.2,00,000/- (Rupees Two Lakh 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 on 23.11.2023 and on other subsequent dates as may be
fixed in this behalf with following further conditions:-
( i) the concerned jail authorities are directed that before
releasing the appellant, the medical examination of the
appellant be conducted through the jail doctor and if it is
prima facie found that she is having any symptoms of
COVID-19, then the consequential follow up action or any
further test required be undertaken immediately. If not,
appellant shall be released on bail in terms of the conditions
imposed in this order ;
(ii) violation of conditions, State is free to apply for
cancellation of bail.
Accordingly, I.A. No.15174/2023 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
neetu
NEETU
Digitally signed by NEETU SHASHANK
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
st=Madhya Pradesh,
SHASH
2.5.4.20=36b486bb0d381b950e435ec
09e066bc6b58cb947c1474b7dc349a1
cf27eaa2ce,
pseudonym=C09AF52B2B8D28DBCFF
3D4A07CC4C71E915C48FC,
ANK
serialNumber=E60A9BBFC39E0EE500E
AADE1E0B3B8565CB3A7DC9F5CD048
197DF0FF3149AE58, cn=NEETU
SHASHANK
Date: 2023.09.23 18:07:37 -07'00'
