Madhya Pradesh High Court
Pulastmuni Tiwari vs The State Of Madhya Pradesh on 21 February, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 4351 of 2019
(PULASTMUNI TIWARI Vs THE STATE OF MADHYA PRADESH)
Dated : 21-02-2024
Shri Kapil Sharma- Advocate for the appellant.
Shri Anuj Singh - Panel Lawyer for the respondent No.1/State.
None for the victim despite service of notice.
Trial Court record has been received.
Heard on admission.
Trial Court record perused.
Prima facie, this appeal seems to be arguable. Hence, admitted for final
hearing.
Heard on I.A. No.28074/2023, second application under Section 389(1)
of Cr.P.C. for suspension of sentence and grant of bail to appellant, pending
the appeal.
first application (I.A. No.7143/2021) was dismissed for want of
prosecution vide order dated 09.7.2022.
Appellant has been convicted for commission of offence under Section
376(1) of IPC and section 4 of POCSO Act, 2012, invoking the provisions of
Section 42 of the POCSO Act has been sentenced to undergo R.I. for 10 years
and fine of Rs.500/-, with default stipulation vide judgment dated 8.3.2019
delivered by Special Judge, POSCO Act, Mouganj, District Rewa in
S.C.No.131/2017 (State of M.P. Vs. Pulastmani Tiwari).
Learned counsel for the appellant has submitted that appellant has been
erroneously convicted by the learned trial Court as it has not properly
appreciated the evidence of witnesses. It is submitted that appellant has already
undergone more than five years in jail. It is also contention of learned counsel
that factum of enmity between the family of prosecutrix and appellant/accused
is admitted. It is submitted that in medical examination no injury was found on
the person of minor prosecutrix. Evidence of witnesses regarding seizure of
undergarments is contradictory. F.I.R was lodged after two days of incident.
Placing reliance on the order of Hon'ble Apex Court dated 2.2.2024 in SLP(Crl)
No.1049/2024 (Atul @ Ashutosh Vs. State of M.P. ) it is contended that where
final argument in the appeal is not likely to be heard before completion of entire
sentence, normally suspension of sentence and bail should be granted.
Therefore, it is prayed that the execution of jail sentence of appellant be
suspended and he be released on bail.
On the other hand, learned counsel for the respondent/State has opposed
the grant of bail to the appellant and has submitted that minor prosecutrix and
other witnesses have fully supported the prosecution story. FSL report is
positive. Before trial Court, prosecutrix has categorically deposed about
commission of offence by the appellant. Two days delay in lodging FIR was
keeping in mind the honour of family. FIR was lodged after considering all
aspect of the family reputation and honour of minor. Prosecution has proved its
case beyond all reasonable doubts.
In this case the prosecutrix at the time of commission of offence was
below 15 years of age. She has categorically deposed before the trial Court
about aggravated penetrative sexual assault upon her by the appellant. No
parents will put honour of their 14 years old daughter at stake just to implead
someone in a false case. Hymen is also found raptured though old.
Therefore, having taken into consideration the evidence of witnesses on
record and all the facts and circumstances of the case, I am of the view that no
case for suspension of sentence and grant of bail is made out. Accordingly,
I.A. No.28074/2023 is dismissed.
List this case for final hearing in the week commencing 13th May, 2024.
(DINESH KUMAR PALIWAL)
JUDGE
mrs. mishra
