Madhya Pradesh High Court
Ejaz @ Azad vs The State Of Madhya Pradesh on 14 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 1923 of 2023
(EJAZ @ AZAD Vs THE STATE OF MADHYA PRADESH)
Dated : 14-05-2024
Shri Ritu Raj Bhatnagar - Advocate for the appellant.
Shri G S Chouhan - Dy. Advocate General for the respondent/State.
Heard on I.A. No.11598/2023, which is the first application under
Section 389(1) of Cr.P.C. for suspension of sentence and grant of bail filed on
behalf of the sole appellant- Ejaz @ Azad S/o Mohammad Salim Mansoori.
2 . The appellant has been convicted by Second Additional Session
Judge, Ujjain, (MP) in Session Trial No.18/2020 vide judgment dated
19.12.2022 and has convicted the appellant under Section 366 & 376(2)(n) of
Indian Penal Code read with Section 5(l)/6 of the POCSO Act, 2012 and
sentenced him to undergo 05 years R.I, 10 years R.I , 20 years R.I with fine of
Rs.1,000/-, Rs.2,000/-, Rs. & Rs.5,000/- respectively with default stipulations.
3 . Facts of the case in brief are that as per the intimation dated
09.05.2020 the victim left the house on 07.05.2020 and a missing report
No.16/2021 was registered at Police Station Mahidpur Road, District Ujjain.
The victim was recovered on 30.05.2020 at Police Station Mahidpur Road,
District Ujjain. The offense was registered against appellant/accused at Police
Station Mahidpur Road, Ujjain.
4 . Learned counsel for the appellant has sought for suspension of
execution of sentence on the ground that the prosecution failed to prove that
victim was below the age of 18 years at the time when incident took place. In
the missing report itself the age of the prosecutrix was reported to be 20 years.
However, the missing report (Ex.D-2) has not been considered for determining
the age of the prosecutrix. Trial Court committed an error in considering the
statement of PW-4 regarding the age of the prosecutrix. Trial Court committed
an error in not considering the statement of victim herself which states that she
herself accompanied the appellant/accused. It is also submitted that appellant is
a poor person and he is the only earning member of in his family 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.
5. Despite service of summon to victim no one appeared for the victim.
6. Learned counsel for the respondent/State opposed the prayer through
reply filed as document No.2501/2024 submitting that the age of the prosecutrix
is proved through radiologist report Ex.P-3 and testimony of Dr. Anil Bhargav
PW-9. DNA report Ex.P-24 is matched with the profile of the prosecutrix.
Prosecution story is supported by the mother (PW-2) and grandmother (PW-4)
of the victim. The appellant/accused has failed to discharge the burden to rebut
the presumption hence, the appellant does not deserves for suspension of
sentence.
Heard both the parties and perused the record.
7. In para 30 of the judgment the trial Court has discussed the statement
of prosecutrix PW-1 in which she has stated that the relationship between the
appellant/accused with her consent. The trial Court has fastened the criminal
liability on the appellant/accused recording the finding that radiologist has
opined the age of victim as 16 years and margin of error may be allowed only
06 months and denied the extension of margin of error to 02 years.
8 . Considering the whole statement of prosecutrix (PW-1) and the
statement of victim's mother (PW-2) where she states that victim was married
prior to 06 months of lock-down (para 06), we deem it fit to suspend the
remaining jail sentence of the appellant, without going to the merits of the case.
9. Accordingly, I.A. No.11598/2023 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 -Ejaz @ Azad S/o
Mohammad Salim Mansoori shall remain suspended, till final disposal of this
appeal.
10. 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.
11. In light of judgment passed in case of Aparna Bhat Vs. State of
Madhya Pradesh reported in LL 2021 SC 168, copy of this order be sent to
the victim.
Certified copy as per rules.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
akanksha
