Madhya Pradesh High Court
Betu Kotwar vs The State Of Madhya Pradesh on 10 April, 2017
CRA-3030-2015
(BETU KOTWAR Vs THE STATE OF MADHYA PRADESH)
10-04-2017
Ms. Anjali Banerjee, learned counsel for the appellant. Mr.Arvind Singh, learned PL for the State.
Heard on I.A.No.22077/2015, which is an application for suspension of sentence and grant of bail on behalf of the appellant. The appellant has been convicted for offences under sections 363 IPC and sentenced to RI for three years and a fine of Rs.1000/-, under section 366 IPC and sentenced to RI for 7 years and a fine of Rs.2000/-, under section 376 IPC and sentenced to RI for 10 years and a fine of Rs.5000/-, under section 343 IPC and sentenced to RI for one year and a fine of Rs.500/- and under sections 4 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to RI for 10 years and a fine of Rs.5000/-.
The appellant is in jail since 4.8.2014. The allegation against him is of having committed the aforesaid offences with the prosecutrix. According to the case of the prosecution on 26.7.2014 when the prosecutrix did not return from her school till evening the father of the prosecutrix is stated to have enquired in the entire village in this regard. Upon reading the statement of the prosecutrix before the Trial Court where she has been examined as P.W.2 she states that on 26.7.2014 when she was coming out from her school the appellant forcibly made her get on to his bycycle and took her to his home and kept her there for 8 days and raped her.
The learned counsel for the appellant has stated that the case is one of consent and that both parties are known to each other. In this regard, the learned counsel for the appellant says that the first information report itself is delayed by 8 days The learned counsel for the State says that the delay was on account of the girl having gone missing and the same was registered promptly after she was recovered.
In order to show that she was a consenting party, the learned counsel for the appellant has drawn the attention of this Court to the statement of P.W.4 who isthe doctor who examined the prosecutrix and states that upon her physical examination there was nothing suspicious that was seen. There were no external injuries found on the body of the prosecutrix. Thereafter, the learned counsel for the appellant has drawn the attention of this Court to paragraph 5 of the statement of the prosecutrix before the Trial Court, wherein in her cross-examination she states that earlier also the appellant had established relations with her. The learned counsel for the appellant submits that earlier this incident was never reported by the prosecutrix either to her parents or to the Police thereby showing that she was a consenting party. Learned counsel for the State on the other hand submitted that she was a minor aged 15 years and 21 days. In order to counter the said submission, learned counsel for the appellant has drawn the attention of this Court to the statement of P.W.5, who was the head master of the school where the prosecutrix is stated to have studied. In paragraph 2 the witness says that he has not brought the admission form relating to the applicant to the Court and thereafter volunteered the statement that the said document is very old and after having searched for the same he could not get them. He further states that it is correct to suggest that the prosecutrix has sought admission in the school for Class-I. At that point of time this witness states that no proof relating to the date of birth of the prosecutrix was produced by the parents and that only on the ground of the date given orally by the parents the date is recorded in the school register.
Based upon this the learned counsel for the appellant has submitted that the date of birth of the prosecutrix itself is under a cloud and the age given by the prosecution cannot be deemed to be correct. Looking at the facts and circumstances of the matter specially the statement of the prosecutrix in paragraph 5, the statement of the doctor which does not reveal any kind of external injuries on the prosecutrix and the statement of the Head master (P.W.5) who says that he did not bring the original record of the school to establish her date of birth, I am inclined to allow I.A.No.22077/2015 and suspend the remaining part of the sentence and direct that the appellant be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the Trial Court. The appellant shall now appear before the Registry of this Court on 4.12.2017 and on such other dates as may be directed by the office.
Certified copy as per rules.
(ATUL SREEDHARAN) JUDGE ss