Arun Chouhan vs State Of M.P.

Heard on I.A.No.5411/2020, which is the third application under Section 389 (1) of Cr.P.C. for suspension of jail sentence and grant of bail filed on behalf of the sole appellant Arun Chouhan.

The appellant has been convicted for offence punishable under Section 363, 366 of I.P.C. and Section 6 of Protection of Children From Sexual Offence Act, 2012 and sentenced to undergo 3 years R.I., 4 years R.I. and 10 years and fine of Rs. 500/-, 1,000/- and Rs. 5000/- with default stipulation vide judgment dated 04.07.2019 passed by Additional Judge/Special Judge, (POCSO), Dewas in Session Trial No.415/2018.

Learned counsel for the applicant has submitted that appellant was on bail during the trial and he did not misuse the liberty so granted to him. It is also submitted that the mother of the prosecutrix stated in her cross-examination they have intimated the date of birth to the school officials not on the basis of birth certificate but on speculation and had not supplied birth certificate at the time of admission, even than the trial court has committed error in holding that at the time of the incident the prosecutrix was below 18 years. It is further submitted that the prosecution has not produced any independent witnesses in order to prove their story and prosecutrix herself stated in her statement recorded under Section 164 of Cr.P.C. that she went with the appellant on her own will since they were in relationship from past two years, which clearly indicates that she was a consenting party. The appellant has already completed more than 1 and half years in custody. There are fair chances of success of this appeal. There is no likelihood of hearing of the appeal in near future, if the remaining custodial sentence of the appellant is not suspended then appeal filed by the appellant may turn infructuous. The appellant is ready to deposit the fine amount. Under these circumstances, he prays for suspension of jail sentence and for grant of bail to the appellant.

Learned Panel Lawyer for the respondent/State opposed the prayer of the appellant and prays for rejection of application.

After considering the arguments advanced by the learned counsel for the parties this court is of the view that according to the prosecutrix her date of birth is 13.12.2000 and at that the time of incident she was at about 17 years. The incident has taken place on 28.05.2018, therefore, it is clear that at the time of incident the prosecutrix was below 18 years of age and this fact has also found support from the statement of mother and father of the prosecutrix. Although in the statement recorded under Section 164 of Cr.P.C. the prosecutrix deposed that she went with the appellant on her own accord and contracted marriage with him, however, if her aforesaid statement is accepted in its face value even than at the time of incident she was minor therefore her consent has no value. Therefore, looking to the evidence available on record, no case is made out for suspension of custodial sentence and grant of bail to the appellant. Accordingly,

I.A.No.5411/2020 is hereby dismissed.