Harmesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 15821 MP

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              IN THE HIGH COURT OF MADHYA PRADESH
                           AT GWALIOR
                             CRA No. 8053 of 2023
                 (HARMESH Vs THE STATE OF MADHYA PRADESH AND OTHERS)

Dated : 25-09-2023
         Shri Ram Kishore Sharma - Advocate for the appellant.

         Shri Rajesh Shukla - Additional Advocate General for the respondent-

State.

Heard on I.A. No.16251 of 2023, first application under Section 389(1) of Cr.P.C. moved on behalf of the sole appellant for suspension of sentence

and grant of bail.

Appellant stands convicted under Section 363 of IPC and sentenced to undergo 05 years RI with fine of Rs.5000/-, Section 366 of IPC and sentenced to undergo 05 years RI with fine of Rs.5000/-, Section 6 of POCSO Act and Section 376(2)(n) of IPC and sentenced to undergo Life Imprisonment with fine of Rs.5000/- with default stipulations respectively vide judgment of conviction and order of sentence dated 02nd June, 2023 passed by Special Judge (POCSO Act), Bhind District-Bhind in Sessions Trial No.101/2021.

The appellant so far has undergone incarceration of 01 year and 01

month.

Prosecution story as found proved is that on 25-01-2021 prosecutrix was sleeping in her room. At about 06 in the morning, when father of the prosecutrix did not find her in the room they started searching her when they could not find her, a missing report was lodged at Police Station Ater, District-Bhind at Crime No.10/2021. During investigation, on 16-03-2021, prosecutrix was recovered from the possession of present appellant. Thereafter, her statements under Section 161 and 164 of Cr.P.C. were recorded. Upon completion of

investigation, challan was filed and the case was committed to the Sessions Trial. The Sessions Court on proper appreciation of evidence placed on record convicted and sentenced the present appellant as referred above.

Learned counsel for the appellant while taking exception to the impugned judgment interalia submits that appellant has been falsely implicated. In fact, it is a case of consent. Appellant and prosecutrix were known to each other. In her statement recorded under Section 161 and 164 of Cr.P.C., prosecutrix has stated that on the fateful day, she had gone with the appellant on the motorcycle to Itawah on her own will where she stayed for a day and from where she proceeded to Delhi and then to Noida, but she did not raise any

alarm during this period as discussed in paragraph 20 of the impugned judgment. Besides, appellant has already suffered 01 year and 01 month incarceration. The appeal is of the year 2023 and there is no likelihood of early hearing of this appeal in near future. Under such circumstances, learned counsel prays that the present appellant may be extended the benefit of suspension of sentence and grant of bail.

Per contra, learned Additional Advocate General for the State opposes t h e application while supporting the impugned judgment and submits that prosecutrix was minor at the time of incident as found by the Court below therefore, her consent is immaterial, hence, no exception can be taken in the matter of grant of bail.

Upon hearing learned counsel for the parties, though this Court refrains from commenting upon the rival contentions so advanced touching the merits of the case, but regard being had to the obtaining facts and circumstances of case coupled with the fact that the appeal is of the year 2023 and there is no likely to be decided in the near future, we are of the view that present appellant is entitled

to the benefit of suspension of sentence and grant of bail.

Accordingly, the I.A. stands allowed and it is directed that the jail sentence of the appellant shall remain suspended during pendency of the present appeal and he shall be released on bail subject to verification of the factum of depositing the fine amount and on his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac 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 29-11-2023 and on other subsequent dates as may be fixed in this behalf.

Accordingly, the said IA stands allowed and disposed of. Observations on facts, if any, are only for the purpose of deciding the instant applications and shall have no bearing on the merits of the appeal.

Certified copy as per rules.

     (ROHIT ARYA)                            (ROOPESH CHANDRA VARSHNEY)
        JUDGE                                           JUDGE

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      VARSHA
      CHATURVEDI
      2023.09.26
      10:38:24 +05'30'