Natthu Pal vs The State Of Madhya Pradesh
2021 Latest Caselaw 1684 MP

                                    1                              CRA-2296-2021
         The High Court Of Madhya Pradesh
                    CRA-2296-2021
               (NATTHU PAL AND OTHERS Vs THE STATE OF MADHYA PRADESH)

4
Jabalpur, Dated : 30-04-2021
        Heard through Video Conferencing.
        Shri M.K. Sharma, learned counsel for the appellant No.1.
        Shri B.J. Chourasia, learned counsel for the appellant No.2.
        Shri Rahul Tripathi, learned Panel Lawyer for the respondent-State.

Record of the court below is available on record.

Heard on the question of admission.

Appeal is admitted for hearing.

Also heard on I.A.No.5439/2021, which is an application filed by the accused/appellants, under section 389 (1) of Cr.P.C. for suspension of their jail sentence awarded by the Court of learned Session Judge Lavkush Nagar, District Chhatarpur (MP), in S.T. No.36/2020 vide its judgment dated 15.2.2021, convicting the appellants/accused for offence punishable under Section 363/34 of IPC and sentenced them to undergo RI for 3 years with fine of Rs.2,000/- with default stipulation and under Section 366-A/34 of the

IPC and sentenced them to undergo RI for 5 years with fine of Rs.2,000/- with default stipulation.

As per prosecution case, on 26.10.2017, present accused/appellants and co-accused kidnapped prosecutrix aged about 15 years and took her at various places. Thereafter, co-accused-Devendra committed intercourse with her.

Learned counsel for the accused/appellants submits that learned trial Court committed grave error in convicting and sentencing the accused/appellants. There is no clinching evidence available on record on which it can be said that at the time of incident prosecutrix was below 18 years, although father of prosecutrix (PW/1) deposed before the trial Court that at the time of incident prosecutrix was 14 years of age. He admitted in 2 CRA-2296-2021 cross-examination that he is unable to disclose the date of birth of any of his child. Thus, he was unable to disclose the date of birth of prosecutrix. He admitted this fact that Principal of the school wrote estimated date of birth of prosecutrix. Prosecutrix (PW/4) admitted in her cross-examination that her sister (PW/2) is about 22 years and she is younger to her for three years. So, it appears that at the time of incident, prosecutrix was above 18 years,

although Rammilan Ahirwar (PW/14) produced admission register with regard to admission of prosecutrix in which it is mentioned that date of birth of prosecutrix is 01.07.2002. But, source of birth is not proved by the prosecution and her father also admitted this fact that in the school register, the date of birth is written on estimated basis. So, it is not proved beyond reasonable doubt that at the time of incident prosecutrix was below 18 years. Prosecutrix (PW/4) deposed before the trial Court that she voluntarily came to the co-accused-Devendra Yadav. Prosecutrix and co-accused-Devendra loved each other. During the trial, co-accused-Devendra and prosecutrix solemnized marriage. During the trial accused/appellants remained in jail from 02.12.2017 to 10.01.2018 and at present they are in jail since 15.02.2021. The execution of jail sentence of main accused has already been suspended and granted bail to him by this Court. This appeal is of year 2021, trial will take time to conclude the same. There are material contradictions and omissions in the statement of the witnesses. There is fair chance to succeed in the appeal. There is no likelihood of their absconding and tampering with the evidence. Under the circumstances, if the execution of jail sentence of the appellants is not suspended, their right to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail of present accused/ appellants.

Learned Panel Lawyer for the State has opposed the application and prayed for its rejection.

Having considered the arguments advanced by learned counsel for the parties and from perusal of record it appears from the statement of witnesses 3 CRA-2296-2021 that age of prosecutrix is disputed, prosecutrix herself stated that she voluntarily came to the co-accused-Devendra, it is also admitted fact that co- accused-Devendra and prosecutrix solemnized marriage with each other, the execution of jail sentence of main accused has already been suspended and granted bail to him by this Court, accused/appellants remained in jail from 02.12.2017 to 10.01.2018 and at present they are in jail since 15.02.2021, this appeal is of year 2021, final hearing of this appeal will take time, but without commenting anything on the merit of the case, the said I.A. No. 5439/2021 is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellants Natthu and Pappu shall remain suspended during the pendency of this appeal and

they be released on bail on their furnishing a personal bond for a sum of Rs.50,000/-(Rupees Fifty Thousand Only)each with one solvent surety each in the like amount to the satisfaction of the trial Court for their appearance before the trial court on 23.6.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard. In case, the appellants are found absent on any date fixed by the trial court then the said court shall be free to issue and execute warrant of arrest without referring the matter to this Court, provided the Registry of this Court is kept informed.

In view of the outbreak of 'Corona Virus disease (COVID-19)' the applicant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020 , it would be appropriate to issue the following direction to the jail authority :-

1. The Jail Authority shall ensure the medical examination of the appellants by the jail doctor before their release.

2. The appellants shall not be released if they are suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

4 CRA-2296-2021

3. If it is found that the appellants are suffering from 'Corona Viru s disease', necessary steps will be taken by the concerned authority by placing them in appropriate quarantine facility.

List this matter for final hearing in due course along with Cr.A.No.1307/2021, as per listing policy.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

sp Digitally signed by SAVITRI PATEL Date: 2021.05.03 11:17:29 +05'30'