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Learned counsel for the State submits that victim has been served.
Heard on I.A. No.8308 of 2023, an application under Section 389(1) of the Cr.P.C for suspension of sentence and grant of bail to appellant - Satyam Singh Baghel @ Chandra Shekhar Singh Gaharwar arising out of judgment dated 27.02.2023 delivered in S.T. No. 58/2020 passed by Special Judge, POCSO Act Sidhi, Distt. Sidhi (M.P.).
The appellant has been convicted for the offence punishable under Section 376(3) of IPC and sentenced to undergo R.I. for 20 years with fine of RS. 5000/-, Section 363 IPC sentenced to undergo R.I. for 3 years with fine of Rs. 1000/-, Section 366 IPC sentenced to undergo R.I. for 7 years with fine of Rs.2000/- with default stipulation.
Learned counsel for the appellant submits that appellant by now has undergone almost 2 years and 4 months custody. As per prosecution story, the appellant took the victim with him forcibly on a motorcycle. He travelled with victim from Rewa to Satna, from Satna to Indore, from Indore to Pitampur and sexually assaulted her. Appellant's counsel submits that victim in her statement recorded under Section 164 of Cr.P.C. (Ex.P-3) deposed that four persons sexually assaulted her. Except appellant, no other person was even tried. In the Court statement she took a u-turn and only alleged against the appellant. The FSL, DNA and scientific evidence do not support the case of the prosecution. The statement of victim is not of sterling quality and therefore, cannot be sole basis of conviction. The age of the victim could not be established with necessary certainty. The Court below has ascertained the age on the basis of scholar register. (PW-7) who produced the scholar Register has candidly admitted that date of birth so recorded in the said register is based on the transfer certificate which was never produced before the Court below. The Apex Court in its recent judgment in Manak Chand @ mani Vs. The State of Haryana ( CRA. No. 2276 of 2014) decided on October 30, 2023 opined as under:
"8. .......But it has also come in the evidence of Ram Sahay (PW-2) that this date of birth was recorded not on the statement of the parents of the prosecutrix, but by some other person and more importantly, it was based on the transfer certificate of Government Primary School where the date of birth was recorded as 04.04.1987. All the same, this transfer certificate, on the basis of which the date of brith was recorded, was never produced in the Court. Yet, both the Trial Court and the High Court have relied upon the veracity of the School register. "
Thus, determination of age of victim by the Court below is erroneous. Thus, presumption under Section 29/30 Evidence Act is not attracted. The Final hearing of this appeal is not possible in near future. Therefore, the remaining jail of appellant may be suspended. This Court for this reason suspended the jail sentence in Cr.A. No. 12574 of 2022 on 02.11.2023.
Shri Arvind Singh, learned G.A. opposed the prayer and submits that the victim has indeed deposed against the appellant and MLC report suggests commission of sexual assault.
Considering the aforesaid factual backdrop, without commenting on the merits of the case, we deem it proper to suspend the remaining jail sentence of the appellant.
Accordingly, I.A. No.8308 of 2023 is allowed.
Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of this appellant is hereby suspended and it is directed that appellant - Satyam Singh Baghel @ Chandra Shekhar Singh Gaharwar be released on bail on his furnishing a personal bond for a sum of Rs.30,000/- (Rupees Thirty Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court with a further direction to appear before the trial Court, Sidhi on 4th of December, 2023 and also on such other dates as may be fixed by the trial Court in this regard during the pendency of this appeal.
Certified copy as per rules.