MUKESH KUMAR MANDAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Heard on I.A. No.30151/2023, which is an application under Sec. 389(1) of Cr.P.C., for suspension of sentence and grant of bail to appellant - Mukesh Mandal.

(2.) This application is filed being aggrieved of the judgment dtd. 27/3/2023, passed by the learned Special Judge, POCSO Act, Sehore, District Sehore (M.P.), in Special Case ATR No.90/2020, whereby, the appellant has been convicted for the offence under Ss. 363, 366 and 376(2)(n) of IPC and sentenced to undergo R.I. for one year with fine of Rs.500.00, R.I. for one year with fine of Rs.500.00 and R.I. for twenty years with fine of Rs.1,000.00 and Sec. 5(L)/6 of POCSO Act and sentenced to undergo R.I. for twenty years with fine of Rs.1,000.00 and Sec. 3(2)(v) of SC/ST (POA) Act and sentenced to undergo R.I. for life and fine of Rs.1,000.00 with default stipulations.

(3.) Learned counsel for appellant submits that the appellant is innocent. School Teacher (PW-4) has been examined before the Court of law and this witness Kamlesh Kumar Raghuwanshi has admitted that the prosecutrix earlier admitted at Primary School, Adampur from where she has taken transfer to Government School, Neemakhedi, Development Block Nasrullahganj where he posted since 2003. He has further admitted that the document which he has got do not contain any proof of date of birth. He further admits in para-5 of the his cross examination that date of birth as recorded in Ex.P-16 and Ex.P-17 was recorded as per some estimation and not as per document. Thus, learned counsel for the appellant submits that the age of prosecutrix to show her to be minor has become doubtful and therefore, there cannot be any presumption under Sec. 35 of the Evidence Act.