Madhya Pradesh High Court
Mewakram vs The State Of Madhya Pradesh on 7 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 8232 of 2023
(MEWAKRAM Vs THE STATE OF MADHYA PRADESH)
Dated : 07-05-2024
Shri Manu Maheshwari - Advocate for the appellant.
Shri G S Chouhan - Dy. Advocate General for the respondent/State.
Heard on I.A. No.10046/2023, which is the first application under
Section 389 of Cr.P.C. for suspension of sentence and grant of bail filed on
behalf of the sole appellant- Mewakram S/o Imarat Korku.
2. The appellant has been convicted by First Additional Session Judge,
Kannod, District Dewas (MP) in Session Trial No.16/2020 vide judgment dated
05.06.2023 and has convicted the appellant under Section 363, 366, 506 (part -
II), 376(2)(n), 376(2)(i) of Indian Penal Code read with Section 5(l)/6 of the
POCSO Act, 2012 and sentenced him to undergo 10 years R.I, 06 months R.I,
01 year R.I , 20 years R.I with fine of Rs.2,000/-, Rs.500/-, Rs. 1,000/-,
Rs.1,000/- respectively with default stipulations.
3. Facts of the case in brief are that father of the victim intimated on
09.01.2019 at Police Station, Satwas that her daughter aged 16 years is missing
from 09:00 pm of 05.01.2019. A report under Section 363 of the IPC was
registered against unknown persons as Crime No.10/2019. After recovery of the
victim PW-3, on 06.03.2019, her statement were recorded under Section 161 of
the Cr.P.C. On 08.03.2019 her statement were recorded under Section 164 of
the Cr.P.C before Judicial Magistrate First Class, Khategaon and on 11.03.2019
appellant was apprehended in connection with the kidnapping and aggravated
penetrative sexual assault towards the minor victim. Samples collected were
sent for DNA profiling.
4. Learned counsel for the appellant has sought for suspension of
execution of sentence on the ground that the age of the prosecutrix is doubtful.
Neither parent nor the school teachers has endorsed the contents in relation to
the age of the prosecutrix. No valid and reliable proof of the age of the
prosecutrix as per the scheme of POCSO Act, 2012 is available on the record.
5. The ossification test has not been conducted for the determination of
the age and the prosecution has failed to prove that the prosecutrix was minor at
the date on which the alleged incident took place. It can be clearly seen from the
statement of father and mother of the prosecutrix that the prosecutrix was major
at the date of incident. The entire case lies on the false premises that the
prosecutrix was a minor and she was taken by the appellant. However, the same
has not been supported by the statement of the prosecutrix. Even the missing
information report has been filed with the delay of four days. There is nothing
on record to show iota of affirmation of action on the part of the appellant. It is
also, argued that appellant has served more than 05 years of jail incarceration
and there is no likelihood that the appeal will be finally decided in the near future
therefore, it is prayed that the application for suspension of sentence on behalf
of the appellant be allowed.
6. Notice to victim PW-3 has been served but no one appeared.
7. Learned counsel for the respondent/State opposed the prayer through
reply filed as document No.12131/2023 referring to para 18, 23, 25, 33, 38 and
40 of the judgment and submitted that the trial Court has legally and rightly
convicted the appellant and considering the gravity of offense, nature of crime
and age of the victim the appellant does not deserves for suspension of
sentence.
Heard both the parties and perused the record.
8. Perused the judgment dated 05.06.2023 and record of the trial Court.
The trial Court has recorded the findings in para 18 of the judgment that
prosecutrix is aged 15 years 09 months 19 days on the date of incident i.e
05.01.2019 on the basis of entry (Ex.P-1) in the scholar register of Govt.
Primary School regarding which Ayub Khan PW-1 has stated that he had
recorded the date of birth on the basis of list in Anganbadi and parents of the
victim did not provide any material regarding date of birth of the prosecutrix.
But trial Court did not appreciated para 06 of statement of mother of the
prosecutrix PW-6 in which she has stated on 28.11.2019 that her marriage was
solemnized 20 years ago and the prosecutrix is her eldest daughter who took
birth after the 12 months of her marriage.
9. Considering the above & fact that victim and appellant were residing
for a period of 02 months within the same jurisdiction of Police Station Satwas
where parents of the victim were also residing, we deem it fit to suspend the
remaining jail sentence of the appellant, without going to the merits of the case.
10. Accordingly, I.A.No.10046/2023 is allowed and it is directed that
subject to deposit of fine amount, if not already deposited, and on furnishing
personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with
one solvent surety in the like amount to the satisfaction of learned trial Court,
the execution of substantial jail sentence of the appellant -Mewakram S/o
Imarat Korku shall remain suspended, till final disposal of this appeal.
11. The appellant after being enlarged on bail shall mark his presence
before the trial Court on 15/10/2024 and thereafter on all such subsequent
dates, as may be fixed in this behalf.
List the case for final hearing in due course.
Certified copy as per rules.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
akanksha
