Prakash Wadhwani vs The State Of Madhya Pradesh
2024 Latest Caselaw 12916 MP

Madhya Pradesh High Court

Prakash Wadhwani vs The State Of Madhya Pradesh on 8 May, 2024

Author: Sushrut Arvind Dharmadhikari

Bench: Sushrut Arvind Dharmadhikari

                                                              1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                      CRA No. 10956 of 2023
                                           (PRAKASH WADHWANI Vs THE STATE OF MADHYA PRADESH)

                           Dated : 08-05-2024
                                 Shri Vikas Jaiswal - Advocate for the appellant.

                                 Shri G S Chouhan - Dy. Advocate General for the respondent/State.

Heard o n I.A. No.13103/2023, which is first application filed under Section 389(1) of Cr.P.C. for suspension of jail sentence and grant of bail moved on behalf of appellant - Prakash Wadhwani S/o Shri Jamiyatrai

Wadhwani.

2. Appellant has been convicted vide judgement of conviction and order o f sentence dated 27.07.2023, passed by the learned Thirteenth Additional Judge & Special Judge, (POCSO Act), Indore in S.T. No.58/2021 for offence punishable under Section 363, 354 376 AB of IPC, and Section 5/6 and 9 (M)/10 of POCSO Act, 2012 and sentenced to undergo 07 years, 20 years, 20 years and 07 years of RI to be run concurrently and fine of Rs. 500/-, 1000/-, 1000/-, 500/- 500/- respectively with default stipulations.

3. Facts for disposal of this appeal are that victim (PW-2) aged about 04

years 08 months was going to take toast from a nearby shop from her house at about 7:00 pm on 24.12.2020 and appellant also resided in the same locality and he called the child(victim) and put off her undergarments and laid her on the cot and after lying on the child (victim) moved his body as during sexual intercourse. Victim child returned to her home and apprise the incident to her mother and a written complaint (Ex.P-2) on the same day was lodged in the Police Station Dwarka Puri, Indore by the mother of the child(victim) and

crime No.619/2020 was registered and thereafter, completion of investigation a final report was submitted to the trial Court.

4. Learned counsel for the appellant submitted that this application has been preferred on the ground that the trial Court erred in lightly brushing aside the material contradictions and omissions appearing in the testimony of prosecution witness. Appellant is a poor person and earns on daily basis and he is the sole breadwinner of his family. There are strong chances of the appeal being allowed as the judgment of trial Court is neither proper nor correct.

5. Trial Court committed error in believing the prosecution witnesses and discarding the defense version. Trial Court committed error in deriving

unwarranted inferences. Appellant have no criminal antecedents. Medical report of the child(victim) does not support the case of the prosecution. Trial Court did not produce any of his independent witnesses. Trial Court committed an error in not considering the fact that doctor (PW-4) has stated that in such incident internal and external injuries are to be present on the body of the victim. Statement of the victim was not recorded under Section 161 and 164 of the Cr.P.C and the mother of the victim appeared before the trial Court after a lapse of almost a year. Appellant is willing to abide by the conditions which may be imposed by the Hon'ble Court deems fit to impose upon him and the appellant is ready to furnish adequate surety and shall abide by all the directions and condition which may be imposed by the Court.

6. Notice has been served to the victim but none appeared.

7. Learned counsel for the respondent/State filed their reply by document no.12191/2023 and has opposed the prayer submitting that looking to the age of the victim and nature of offense the appellant does not deserves to be enlarged on bail.

Heard and perused the record.

8. Arguments stated on behalf of the applicant that statement of the child victim under Section 161 of the Cr.P.C was not recorded is contrary to the record as her statement was recorded on 24.12.2020 and is available on record in questions & answer form. The victim child is mentioned as witness in column No.13 of the final report at serial no.10.

9. Considering the statement of child victim (PW-2) and her mother as PW-1 and medical officer Dr. Haridwar PW-3 to whom the victim child stated the history on the same day in which alleged incident was happened. The findings of the trial Court recorded in 28 & 29 of the judgment in the light of Section 3(C) of the POCSO Act,2012 and the period of custody of appellant i.e 03 years 04 months 13 days only, we are not inclined to suspend the jail sentence of the appellant at present. Hence, this first application (I.A. No.13103/2023) under section 389(1) of Cr.P.C. is hereby rejected at present.

C.C as per Rules.

                              (S. A. DHARMADHIKARI)                                 (GAJENDRA SINGH)
                                       JUDGE                                             JUDGE

                           akanksha