IN THE HIGH COURT OF MADHYA PRADESH AT INDORE CRA No. 12033 of 2022 (SURESH AND OTHERS Vs THE STATE OF M.P. AND OTHERS)

Dated : 06.07.2023 Shri Vijay Sharma- Advocate for the appellant.

Shri Bhuwan Gautam- Government Advocate appearing on behalf of Advocate General.

Heard on I.A. No.461/2023, 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 appellants – Suresh and Nandu @ Nandiya (2) The appellants have been convicted and sentenced as under:-

(3) Learned counsel for the appellants submits that the trial court has not properly appreciated the evidence and there are so many contradictions and omissions in the statements of the prosecution witnesses. He further submits that the trial court has ignored the material fact that the prosecution has not produced any reliable material on record which shows beyond the reasonable doubt that the prosecutrix was minor at the time of the incident. He further submits that the date-of-birth mentioned in the scholar register is the sole basis of assessing the age of the prosecutrix but on what basis the date-of-birth of the prosecutrix was mentioned in the scholar register was not produced by the prosecution. The FSL report and DNA report are negative in respect of the appellants. Hence, keeping in view the aforesaid circumstances and the fact that final hearing of the appeal will take a long time, the application for suspension of sentence be allowed.

(4) Learned counsel for the respondent/State opposed the prayer for grant of bail.

(5) Heard the learned counsel for the parties and perused the record.

(6) Considering the facts and circumstances of the case as well as the arguments advanced by the learned counsel for the parties and also considering the fact that PW-6 teacher has admitted in her cross examination that the scholar register was not prepared before her. She has admitted that the villagers tell the dates-of-birth of their children without any record, therefore, it is found that there is no documentary evidence to confirm the date-of-birth of the prosecutrix recorded in the scholar register and also keeping in view the FSL and DNA report, this Court is of the opinion that the appellant deserves to be released on bail. Accordingly I.A.

No.461/2023 is allowed.

(7) It is directed that if the appellants – Suresh and Nandu @ Nandiya deposit the entire fine amount, if not already deposited, and furnish personal bonds in the sum of Rs.50,000/-(Rupees fifty thousand) each with solvent surety each in the like amount to the satisfaction of the trial Court for their appearance before the trial court on 4^th December, 2023 and on such subsequent dates as may be fixed in this regard, sentence of imprisonment awarded to them shall remain suspended till further orders and they shall be released on bail. C.C. as per rules.

(S. A. DHARMADHIKARI ) (HIRDESH)

JUDGE JUDGE N.R.

Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2023.07.06 18:07:06 +05'30'