Madhya Pradesh High Court
Sheikh Aabid vs The State Of Madhya Pradesh on 5 August, 2021
Author: Rajendra Kumar Srivastava
1 CRA-4770-2017
The High Court Of Madhya Pradesh
CRA-4770-2017
(SHEIKH AABID Vs THE STATE OF MADHYA PRADESH)
15
Jabalpur, Dated : 05-08-2021
Heard through Video Conferencing.
Shri Sanjay Kumar Saini, learned counsel for the appellant.
Shri Nishant Yadav, learned P.L. for the respondent/State.
Heard on I.A. No.10656/2021, which is second application for
suspension of sentence and grant of bail to the appellant-Sheikh Aabid.
Earlier application was dismissed as withdrawn.
The appeal has been preferred under Section 374(2) of the
Cr.P.C.,1973 b y the appellant/accused against judgment dated 31.08.2017
passed by learned First Additional Sessions Judge, Hoshangabad, (MP) in
Session Trial No. 400168/2016, by which the appellant has been convicted
for offence under Section 363 of IPC and has been sentenced to undergo
R.I. for 3 years with fine of Rs. 1,000/-, Section 366 of IPC and has been
sentenced to undergo R.I. for 5 years with fine of Rs. 1,000/- as well as
Section 376(2)(i) of IPC read with Section 4 of POCSO Act and has been
sentenced to undergo R.I. for 10 years with fine of Rs. 2000/-. Default
stipulation has also been imposed by the trial Court.
Prosecution case, in short, is that on 05.06.2016, prosecutrix below 16
years was missing from her house. She was searched but not found. Then her
father lodged the report. On 08.06.2016, prosecutrix and appellant/accused
were caught hold by police. It is alleged by the prosecution that present
appellant/accused kidnapped and took her on the false pretext of marriage.
Thereafter, he committed intercourse with her.
L e a r n e d counsel for the appellant/accused submits that
appellant/accused has falsely been implicated in this case. Actually at the time
of incident, appellant/accused was below 18 years. So this matter is must be
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tried before the Juvenile Justice Board. Medical Board determined his age 19
Digitally signed by LALIT SINGH RANA
Date: 2021.08.09 17:44:22 IST
2 CRA-4770-2017
years on 16.03.2017 and incident occurred in this case on 05.06.2016.
Therefore, the age of appellant/accused may be below 18 years at the time of
incident. The evidence of prosecutrix regarding intercourse with her by
appellant/accused is not reliable and prosecutrix caught red handed after two
days of the incident. The date of birth of prosecutrix is determined on the
basis of admission register. But in the admission register, the name of mother
of prosecutrix is different. There are material contradictions and omissions in
the evidence of witnesses. Appellant/accused is in custody since 08.06.2016.
So, he served almost half sentence. This appeal is of the year 2017. There are
fair chances to succeed in the appeal. It is time of COVID-19 pandemic, due
to this, final hearing of this appeal will take time. Therefore, the application
filed on behalf of the appellant may be allowed and the period of his
remaining jail sentence may be suspended further and he may be released on
bail.
Learned P.L. for the respondent/State has opposed the application.
Considering the argument of both the parties and this fact that the age
of appellant/accused is disputed, appellant/accused is in custody since
08.06.2016, therefore he has served almost half sentence, this appeal is of the
year 2017, it is time of COVID-19 due to this final hearing of this appeal will
take time, but without expressing any opinion on the merits of the case, I am
o f the considered opinion that it would be appropriate to suspend the
execution of jail sentence awarded to the appellant and grant bail to him.
Consequently, I.A. No.10656/2021 is allowed subject to deposit of
fine amount, if not already deposited. The custodial sentence awarded to the
appellant shall remain suspended during the pendency of this appeal.
Appellant-Sheikh Aabid be released from custody subject to his
furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty
Thousand Only), with one surety in the like amount, to the satisfaction of the
trial Court. The appellant shall appear and mark his presence before the trial
Court on 30.09.2021 and shall continue to do so on all such future dates, as
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Digitally signed by LALIT SINGH RANA
Date: 2021.08.09 17:44:22 IST
3 CRA-4770-2017
may be given by the trial Court in this behalf, during pendency of the matter.
I n view of the outbreak of 'Corona Virus disease (COVID-19)' the
appellant 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
appellant by the jail doctor before his release.
2 . The appellant shall not be released if he is suffering from 'Corona
Virus disease'. For this purpose appropriate tests will be carried out.
3 . If it is found that the appellant is suffering from 'Corona Virus
disease', necessary steps will be taken by the concerned authority by placing
him in appropriate quarantine facility.
List the matter for final hearing in due course.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
L.R.
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Digitally signed by LALIT SINGH RANA
Date: 2021.08.09 17:44:22 IST
