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Madhya Pradesh High Court

Rajesh vs The State Of Madhya Pradesh on 24 January, 2024

Author: Vishal Dhagat

Bench: Vishal Dhagat

1 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 5844 of 2023 (RAJESH Vs THE STATE OF MADHYA PRADESH AND OTHERS) Dated : 24-01-2024 Shri Sushil Kumar Tiwari - Advocate for appellant.

Shri S.P. Chadhar - Government Advocate for State.

Heard on admission.

Admit.

Appellant has filed I.A. No. 9341/2023, an application under Section 389(1) of Code of Criminal Procedure for suspension of jail sentence.

Appellant has been convicted under Section 376(1) of IPC and Section 4 read with Section 3 of POCSO Act and sentenced to undergo R.I. for 10 years alongwith fine amount with default stipulation for commission of offence under Section 376(1) of IPC.

Counsel appearing for the appellant submitted that prosecutrix and her parents turned hostile before the Court. Trial Court relying on DNA report and Ex.P/19, which is a certificate issued by school regarding date of birth of prosecutrix has convicted the appellant as aforementioned. It is further submitted that none of the witnesses i.e. parents have stated that date of birth of prosecutrix is 11.05.2004 and they have informed the school regarding said date of birth. School has also not produced any document or admission form of the prosecutrix in which date of birth has been mentioned as 11.05.2004. On what basis date of birth 11.05.2004 was mentioned in register is not clear. In these circumstances, prosecution has failed to prove that prosecutrix's date of birth was 11.05.2004. She was hostile before Court. In these circumstances, sentence may be suspended and appellant may be released on bail.

Learned Government Advocate appearing for the State opposed the application for suspension of sentence and grant of bail. It is submitted that school certificate is an admissible document and same has been proved by Headmaster of the school. In these circumstances, application be dismissed.

Heard the counsel for the parties.

Prosecution failed to prove on what basis date of birth certificate was issued by the school. Person who gave the information was not mentioned in the register and put thumb impression informing the date of birth of prosecutrix was also not proved.

Considering aforesaid circumstances and the fact that DNA will be of no consequence if prosecutrix is major, I.A. for suspension of sentence is allowed subject to depositing fine amount, if same has already not been deposited. It is hereby directed that the custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal and he shall be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 05.04.2024 and on other dates as may be fixed in this regard till final disposal of this appeal.

List the matter for final hearing in due course. C.C. as per rules.

(VISHAL DHAGAT) JUDGE vkt Signature Not Verified Signed by: VINOD KUMAR TIWARI Signing time: 25-01-2024 14:24:18