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2018 DIGILAW 298 (MP)

SOMENDRA s/o BHUDHRAM v. STATE OF M. P.

2018-03-12

J.P.GUPTA

body2018
JUDGMENT : 1. Shri Pranay Gupta, Advocate for the appellant/accused. Shri Manish Kumar Soni, Govt. Advocate for the respondent-State. 2. Heard on I.A.No. 2675/2018 filed by the appellant/accused under section 389(1) of Cr.P.C. for suspension of his jail sentence passed by the Court of I ASJ Waraseoni, District Balaghat, in Sessions Trial No. 147/2015 vide its judgment dated 5-8-2017 convicting the appellant/accused under sections 363, 368 of the Indian Penal Code and sentenced him to undergo R.I. for 3 years along with fine of Rs. 2,000/- and R.I. for 3 years along with fine of Rs. 2,000/- respectively, and under section 6 of the POCSO Act and sentenced him to R.I. for 10 years along with fine of Rs. 4,000/- with default stipulation. 3. Learned counsel for the appellant submits that the finding of the Court below is contrary to law. There is fair chance to succeed. The appellant is in custody since 14-5-2015. Disposal of appeal will take time. It is further submitted that the learned trial Court has not appreciated the evidence on record in right perspective. Prima facie it is a case of consensual sexual relationship and at the time of incident the prosecutrix was more than 18 years of age. It is further submitted that the learned trial Court has ignored the facts and circumstances establishing the consent because the prosecutrix was minor at the time of incident. In order to prove the age of the prosecutrix the learned trial Court has relied on the entry recorded in the school register at the time of admission in Class I, Ex.P/18, and the certificate issued on the basis of the aforesaid entry, Ex.P/19; but, the learned trial Court has ignored the circumstances that the prosecution has failed to prove the basis of the entry of Ex.P/18 and P/19, with regard to the date of birth of the prosecutrix. It is further contended that the judgment of the Apex Court in the case of Jarnail Singh vs. State of Haryana, (2013)7 SCC 263 , merely lay down the law that for determination of age of the prosecutrix, the provisions prescribed in rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as ‘the Act of 2000’) would be applicable; but, the judgment is silent on the point to prove the basis of entry and the earlier judgments of the Apex Court in the case of Ravinder Singh Gorkhi vs. State of U.P., (2006)5 SCC 584 and Ashwani Kumar Saxena vs. State of M.P., (2012)9 SCC 750 placing reliance in the case of Birad Mal Singhvi vs. Anand Purohit, 1988 Supp SCC 604, has held as under :— “To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.” 4. In the present case, there is no material to prove the fact that on what basis the entry regarding date of birth of the prosecutrix was recorded as the parents have denied the fact that they disclosed any date of birth to the school authority. In other words, there is an infirmity of the material to show on what basis the same has been recorded. In such circumstances, it cannot be said that the age of the prosecutrix was below 18 years. On these grounds, learned counsel has prayed for suspension of execution of jail sentence and grant of bail. 5. In other words, there is an infirmity of the material to show on what basis the same has been recorded. In such circumstances, it cannot be said that the age of the prosecutrix was below 18 years. On these grounds, learned counsel has prayed for suspension of execution of jail sentence and grant of bail. 5. On the other hand, learned G.A. for the respondent-State has opposed the application and submitted that prima facie the learned trial Court has not committed any error in passing the impugned judgment of conviction and sentence. There is cogent evidence to determine the age of the prosecutrix as per the law laid down by the Apex Court. In such circumstances, question of consent is immaterial. Hence, looking to the nature of the offence and the evidence and other documentary material available against the appellant, he is not entitled to get the benefit of suspension of sentence, hence, the application be rejected. 6. Having considered the period of custody of the appellant and contentions of learned counsel for the parties and on perusal of the record, in view of this Court, prima facie it cannot be said that the contention advanced by the learned counsel for the appellant has no substance. Hence, without commenting anything on the merits of the case, I.A.No. 2675/2018 is allowed. It is ordered that subject to payment of the fine amount, if not already deposited, the execution of jail sentence of appellant-accused Somendra shall remain suspended during the pendency of this appeal and he be released on bail on his furnishing a personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the trial Court for his appearance before the Registry of this Court on 22-10-2018 and thereafter on all other such subsequent dates as may be fixed by the Registry in this regard. 7. Let the appeal be listed for final hearing as per listing policy. C.C. as per rules.