Madhya Pradesh High Court
Vishal vs The State Of Madhya Pradesh on 28 May, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 955 of 2024
(VISHAL Vs THE STATE OF MADHYA PRADESH)
Dated : 28-05-2024
Shri Amit Singh Sisodia, learned counsel for the appellant.
Shri Kushal Patidar, learned counsel for the Respondent [COMP].
Shri G S Chouhan, learned Government Advocate.
Heard on I.A. No.2342/2024, an application under Section 389 (1) of
Cr.P.C.for suspension of execution of sentence appellant and enlargement on
bail.
3. The appellant/accused has been convicted under Section 376 (2) (n) of
IPC and Section 6 read with 5(l) of Protection of Children from Sexual Offence
Act, 2012 and sentenced to undergo life imprisonment and fine of Rs.2000 with
default stipulation in Session Trial No.224/2021 by 2nd Additional Sessions
Judge, Garoth, District Mandsaur vide judgment dated 15.12.2023.
4. The appellant/accused was tried under Section 363, 366, 376 (2) (n)
of IPC and Section 6 read with section 5(l) of Protection of Children from
Sexual Offence Act, 2012. The Trial Court has acquitted the appellant for the
offence punishable under Section 363 and 366 of IPC but convicted the
appellant for the offence punishable under Section 376 (2) (n) of IPC and
Section 6 read with section 5(l) of Protection of Children from Sexual Offence
Act, 2012 recording the finding that the victim (PW-1) was aged about 16 years
11 months on 25.12.2020 i.e. date of incident and appellant/accused committed
penetrative sexual assault between 25.12.2020 to 30.12.2020 at Baser Hotel and
Morbi (Gujarat).
5. This application has been preferred on the ground that the victim was
major and the Trial Court has committed error in holding that the victim was
below 18 years at the time of incident. The prosecutrix lived with the appellant
for 4-5 days, wherein she has travelled by multiple modes of transport across
the State Borders. In the statement under Section 164 of Cr.P.C. she clearly
supported the appellant's version. The Trial Court has committed mistake in not
appreciating the evidence that during that time the prosecutrix was living with
the appellant, she never asked anyone for help and later on under the pressure
from her father and her family who has got her married to someone else and to
protect her image and identify, the victim has given false statement in the Court.
It is also argued that the acquittal of the appellant from the charges under
Section 363 and 366 of IPC has also supported the defence of appellant.
6. Counsel for the victim and State opposes the application. The State
has also filed reply vide 9358/2024 by submitting that the learned Trial Court
has properly relied the scholar register (Ex.P.13) and Certificate (P/14) of the
prosecutrix and testimony of mother of the prosecutrix (PW-2) and properly
determined the age of victim as 16 years 11 months on the date of incident.
7. We have perused the impugned judgment and record of the Trial
Court.
8. Perused para 13 of the testimony of the father (PW-6) of victim in
which he stated that the victim has been married on 11.04.2021 and at the time
of marriage she was major. The duration between date of marriage of the victim
IPW-1) and incident is only 3 months 17 days and also considered the para 6,
7, 8 and 9 of the victim in respect of detail of leaving home on 25.12.2020 and
recovery on 30.12.2020, 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.2342/2024 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 sole appellant 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 11/11/2024 and thereafter on all such subsequent dates,
as may be fixed in this behalf.
11. List the case for final hearing in due course.
12. 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
Praveen
