Madhya Pradesh High Court
Sanjay vs The State Of Madhya Pradesh on 22 May, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 22 nd OF MAY, 2024
CRIMINAL APPEAL No. 3806 of 2022
BETWEEN:-
SANJAY S/O RAMESH AGRAWAL, AGED ABOUT 24
Y E A R S , OCCUPATION: LABOR WARD NO. 2
CHANDRABHAGA SANWER (MADHYA PRADESH)
.....APPELLANT
(SHRI AMAR SINGH RATHORE ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION SANWER
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUHAS PUNDLIK - GOVT. ADVOCATE)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
1.This criminal appeal under Section 374 of the Cr.P.C. is arising out of
judgment of conviction and sentence dated 13.04.2022, passed by learned Fifth
Additional Sessions/Special Judge (POCSO) Act, Indore in S.T. No.162/2020,
whereby the appellant has been convicted under section 9(M)/10 of Protection
of Children from Sexual Offences Act, 2012 (herein after referred to as POCSO
Act) and sentenced to undergo 7 years RI with fine of Rs.5000/-, and 3 months
R.I. in default of fine.
2 . As per the prosecution story, complainant lodged a report that on
11.05.2020 complainant was attending the marriage function of his niece. At
about 3.30 pm appellant's wife, who is assumed to be the sister of
complainant, asked complainant to bring her phone from her house to capture
video recording of the marriage function in her mobile. When complainant
reached her house he saw the prosecutrix (his daughter) was lying in the cot and
the appellant was lying upon her without dress. On seeing the complainant the
appellant started wearing his dress and left the place. Prosecutrix came nearby
the complainant and told him that appellant asked her to bring the mobile from
his house and when she went to take the mobile the appellant followed her and
committed the alleged offence. On the basis of which FIR was lodged against
the appellant.
3. During investigation statement of the prosecutrix and her father under
Section 164 of Cr.P.C has been recorded, the spot map was prepared. Mark
sheet and Scholar Registrar of the prosecutrix (Ex-P/2) and (Ex-P/5)
respectively were recovered for the proof of the prosecutrix's age, the
prosecutrix was sent for medical examination. Applicant was arrested and after
due investigation, the charge-sheet was filed by the investigating agency.
4. The learned trial Court framed the charges under Sections under
Sections 354, 354-A, 511/376 (a)(b) of IPC 1860 and under Section 9(m)(n)/10
of POCSO Act against the appellant. The appellant abjured his guilt and prayed
for trial.
5. The learned trial Court, after considering the evidence and material
available on record has convicted the appellant under Section 9(M)/10 of
POCSO Act, by acquitting him from the charges under Sections 354, 354-A,
511/376 (a)(b) of IPC 1860.
6. Learned counsel for the appellant has submitted that the appellant has
preferred this criminal appeal on several grounds but during the course of
arguments, learned counsel for the appellant did not press this appeal on merits
and not assail the finding part of judgment. He confines his arguments on the
point of sentence. Counsel for the appellant assures that the appellant will not
involve in such criminal activities in future. H e further submitted that he is
having regard to all circumstances which resulted in appellant's conviction.
Further keeping in view the fact that the appellant was facing the trial before the
concerned Court for almost 04 years and the appellant is in jail since
13.05.2020, he has suffered approximately 4 years custody period out of
seven years, therefore, the sentence of the appellant be reduced to the period
already undergone or as the Court may deems fit.
7. Learned Govt. Advocate has opposed the prayer. He supported the
judgment and order by submitting that there is clear evidence against the
appellant. Learned Govt. Advocate has also drawn the Court's attention
towards minimum punishment provided under Section 9(M)/10 of POCSO Act
and therefore, he prays for dismissal of the appeal.
8. Heard learned counsel for the parties and perused the record.
9. On due consideration it is evident that the learned trial Court has not
committed any error in appreciation of evidence available on record. Further, it
is found that the Court below considered the evidence available on record and
correctly found that the case of the prosecution is well supported by the
witnesses and documentary testimony. The procedure was well followed by
the prosecution and the witnesses of prosecution have profoundly supported
the prosecution case. The Court below has well considered the material
available on record, hence no infirmity is found in the impugned order of
conviction passed by the Court below, accordingly the same is upheld.
1 0 . So far as the sentence is concerned, the matter is related to the
incident happened on 11.05.2020, approximately four years ago and the
appellant has already suffered four years in custody out of 7 years of total
sentence awarded to him. Learned counsel submitted that the appellant is
belonging to a poor family and he cannot manage to file bail applications before
the higher Courts so that he could be released on bail during the trial. In as
much he has already completed 4 years punishment, he may be forthwith
released on with the sentence of period already undergone and the fine amount
awarded by learned trial Court be enhanced. On this aspect the said provisions
are perused. There is a minimum sentence of 5 years and fine is prescribed
under Section 10 of POCSO Act. Considering the act of the appellant and the
rigour of the provisions of POCSO Act, there is no need to let of the accused
only for the punishment which he has already suffered as undergone period. As
such the minimum sentence of 5 years prescribed under Section 10 of POCSO
Act is required to be imposed upon the appellant for his aforesaid Act.
Accordingly this appeal deserves to be partly allowed by modifying the
sentence to the period of 5 years from 7 years.
11. In the upshot of aforesaid discussions in entirety the appeal is partly
allowed. Affirming the conviction under Section 9(M)/10 of POCSO Act the
sentence is reduced from 7 years to 5 years R.I by enhancing the fine amount
from Rs.5,000/- to Rs.10,000/-. If the appellant fails to deposit the fine amount,
he shall suffer 3 months of simple imprisonment in default.
12. On completion of 5 years of sentence and after depositing the fine
amount the appellant be released forthwith if not required in any other case.
13. If fine amount is paid, out of the total fine amount Rs.10,000/- shall
be paid to the victim as compensation. The fine amount, if already deposited as
well as the compensation amount paid to the victim, if any, shall be adjusted.
The bail bond, if any, of the appellant will be discharged after depositing the
fine amount.
14.The order of learned trial Court regarding disposal of the seized
property, if any, stands confirmed.
15. A copy of this order be sent to the concerned trial Court for
necessary compliance.
16. With the aforesaid, the appeal is partly allowed and disposed of.
(PREM NARAYAN SINGH)
JUDGE
sumathi
