Shivram vs State Of M.P.

Heard on I.A.No.768/2020 an application of change of counsel filed on behalf of Babulal.

In support of the aforesaid application, affidavit of Babulal Brother-in-law of the appellant has been filed, however, neither the Babulal, brother-in-law of the appellant nor any one has appeared on behalf of Babulal, therefore, I.A.No.768/2020 is dismissed in default.

Also heard on I.A.No 5861/2020, which is the first 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 Shivram.

The appellant has been convicted for offence punishable under Section 363, 366-A of I.P.C. and Section 5L/6 of Protection of Children From Sexual Offence Act, 2012 and sentenced to undergo 3 years R.I., 3 years R.I. and 10 years R.I. and fine of Rs. 100/-, Rs.100 and Rs. 1000 with default stipulation vide judgment dated 09.03.2018 passed by Special Case No.73/2015.

Learned counsel for the appellant 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 prosecutrix accepted in her cross examination that her date of birth is 06.11.1992 and this fact has also found support with the statement of Shambhulal (PW-2) father of the prosecutrix, meaning thereby at the time of incident, the prosecutrix was major. From the statement of prosecutrix, it appears that she was consenting party. It is further submitted that the trial court has not properly appreciated the evidence and wrongly convicted the appellant for the said offence. There are fair chances of success of 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.

Though prayer for suspension is opposed by the learned Public Prosecutor, however, looking to the aforesaid, without further commenting on the merits of the case, it would be appropriate to suspend the custodial sentence of the appellant.

Accordingly, I.A.No 5861/2020 is allowed and it is directed that subject to depositing fine amount and on furnishing personal bond by the appellant in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with a solvent surety in the like amount to the satisfaction of the learned trial Court for his appearance before the Court, the execution of custodial part of the sentence shall remain suspended, till the final disposal of this appeal.

The appellant after being enlarged on bail, shall mark his presence before the registry of this Court on 14.12.2020 and on all such subsequent dates, which are fixed in this regard by the Registry.

Certified copy, as per rules.