Sarfraj Ansari vs The State Of Madhya Pradesh
2021 Latest Caselaw 4224 MP

                                                                     1                               CRA-2985-2016
                                          The High Court Of Madhya Pradesh
                                                     CRA-2985-2016
                                                   (SARFRAJ ANSARI Vs THE STATE OF MADHYA PRADESH)

                                   28
                                   Jabalpur, Dated : 12-08-2021

                                         Shri Anil Verma, Advocate for the appellant.
                                         Ms. Kamlesh Tamrakar, P.L. for respondent/ State

This appeal is already admitted.

Heard on I.A. No. 10225/2021, which is eighth application for suspension of sentence and grant of bail to the appellant. Earlier

applications were dismissed as withdrawn.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 24.08.2016 passed by learned Special Judge (POCSO Act) Singrauli, ( MP) in Special Case No. 56/2014, by which the appellant has been convicted for offence under Sections 363 of IPC and has been sentenced to undergo R.I. for 3 years with fine of Rs.1000/-, Section 366 A of IPC and has been sentenced to undergo R.I. for 4 years with fine of Rs.

2000/- & Section 5 and 6 of POCSO Act and sentenced to undergo RI for 10 years with fine of Rs. 10000/- with default stipulations respectively.

Prosecution case, in short, is that on 06.09.2014, prosecutrix PW/3 was missing from her house. She was searched but not found, then FIR was lodged on 20.09.2014. On 23.09.2014 prosecutrix was recovered from the possession of the present appellant-accused. It is alleged by the prosecution that present appellant-accused kidnapped the prosecutrix and took her at his house village-Raipur P.S. Badagaon and thereafter he committed intercourse with her.

Learned counsel for the appellant/accused submits that learned trial Court committed grave error in convicting and sentencing the appellant/accused. Learned trial Court did not appreciate the evidence in Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.08.12 18:06:57 IST 2 CRA-2985-2016 perspective way. It is not proved that at the time of incident, prosecutrix PW/3 was below 18 years. Learned trial court itself held in the paragraph 33 of the judgement the age of prosecutrix may be 17 years 6 months. There are so many contradictions and omissions in the evidence in regards of age, so prosecutrix may be above 18 years. Prosecutrix

resided with appellant about 16 days but she did not raise any objection during this period, so she may be consenting party in this matter. Appellant/accused is in custody since 24.08.2016. During trial he remained in jail since 26.09.2014 to 30.12.2014, so he has served 5 years sentence out of 10 years. This appeal is of the year 2016. 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 execution of remaining jail sentence may be suspended and he may be released on bail.

PL for the respondent/State has opposed the application. Hearing the argument of both the parties and this fact that age of prosecutrix is disputed. prosecutrix may be consenting party in this matter, appellant/accused is in custody since 24.08.2016, during trial he remained in jail since 26.09.2014 to 30.12.2014, so he has served 5 years sentence out of 10 years. This appeal is of the year 2016, it is time of COVID-19 pandemic, due to this, final hearing of this appeal will take time, but without expressing any opinion on the merits of the case, I am of 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. 10225/2021 i s 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 Signature Not Verified SAN appeal.

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.08.12 18:06:57 IST 3 CRA-2985-2016 Appellant-Sarfaraj Ansari 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 20.12..2021 and shall continue to do so on all such future dates, as may be given by the trial Court in this behalf, during pendency of the matter.

In 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 MISHRA

Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.08.12 18:06:57 IST