Shubhari Kol vs The State Of Madhya Pradesh
2021 Latest Caselaw 4509 MP

                                                                      1                              CRA-2390-2019
                                            The High Court Of Madhya Pradesh
                                                       CRA-2390-2019
                                                     (SHUBHARI KOL Vs THE STATE OF MADHYA PRADESH)

                                    3
                                    Jabalpur, Dated : 23-08-2021
                                          Heard through Video Conferencing.

                                          Shri T.P. Jaiswal, Advocate for the appellant.
                                          Shri Gopal Jaiswal, Panel lawyer for the respondent/ State.

Record of the court below is available on record. Appeal is admitted for hearing.

Heard on I.A. No. 20800/2019 for condonation of delay. As per office report, there is delay of 114 days. Considering the averments made in the application, which is supported by an affidavit, the same is allowed.

The delay of 114 days is hereby condoned.

Now, heard on I.A. No. 5002/2019, which is first application for suspension of sentence and grant of bail to the appellant.

The appeal has been preferred under Section 374(2) of the

Cr.P.C.,1973 b y the appellant/accused against judgment dated 01.09.2018 passed by learned 1st Addl. Sessions Judge, Satna (MP) in S.T. No. 205/2017, by which the appellant has been convicted for offence under Sections 363 of IPC and has been sentenced to undergo R.I. for 7 years with fine of Rs.1000/-, Section 366 A of IPC and has been sentenced to undergo R.I. for 7 years with fine of Rs. 1,000/-, Section 376(2)(N) of IPC and sentenced to undergo R.I. for 10 years and Section 5(1)/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 dated 07.11.2017, prosecutrix aged 17 years was missing from her house. She was searched but not

Signature Not Verified SAN found. Then FIR was lodged. Thereafter, prosecutrix was recovered on

Digitally signed by PALLAVI SINHA Date: 2021.08.24 11:27:21 IST 2 CRA-2390-2019 dated 01.12.2017. It is stated by the prosecution that present appellant- accused kidnapped her and took her at Bamhori and thereafter to village Badera. Appellant-accused kept her in a house and committed intercourse with her.

Learned counsel for the appellant/accused submits that learned

trial Court has committed grave error in convicting and sentencing the appellant/accused. Learned trial Court did not appreciate the evidence in perspective way. It is not proved beyond reasonable doubt that at the time of incident, prosecutrix was below 18 years. FIR was lodged by the father of the prosecutrix in which her age is recorded as 17 years. Although Smt. Ramdulari PW-4, who is the Principal of School, deposed before the Trial Court that the date of birth of the prosecutrix in the school register is mentioned as 05.07.2001 but she admitted that at the time of admission in the school, no documentary evidence has been produced by the parents of the prosecutrix. At the time of admission mother of prosecutrix came to the school. She did not know what is the source of information of date of birth of prosecutrix. She is unable to depose this fact that what is the source of date of birth of prosecutrix. Prosecutrix (PW-1) also admitted this fact that she is 18-19 years old. Her sister-in-law (PW-2) also admitted this fact her father PW-3 did not disclose the date of birth of prosecutrix, Dr. Smt. Ekta Shrivastava Nigam PW-9 admitted this fact that the prosecutrix is might be of 18-19 years at the time of incident. So, it is not proved that the prosecutrix is below 18 years. She may be 18 years. Prosecutrix PW-1 deposed before the Trial Court that appellant-accused and she have solemnized marriage at temple. Prosecutrix and appellant-accused belongs to Scheduled Tribe. There is custom of marriage by run away. So, prosecutrix is the wife of appellant-accused. So, it may be matter of consent. There are Signature Not Verified SAN material contradiction and omission in the evidence of the witnesses.

Digitally signed by PALLAVI SINHA Date: 2021.08.24 11:27:21 IST 3 CRA-2390-2019 During trial, appellant-accused remained in jail from 01.12.2017 to 27.01.2018 and is in jail since 01.09.2018. There is every possibility to succeed in the case. This appeal is of the year 2019. 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 his 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 herself admitted this fact that

appellant-accused and prosecutrix solemnized marriage at temple, so it may be matter of consent, both parties are of Scheduled Tribe, during trial, appellant-accused remained in jail from 01.12.2017 to 27.01.2018 and is in jail since 01.09.2018 so he has served 3 years sentence out of 10 years, there is every possibility to succeed in the case, this appeal is of year 2019, 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 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. 5002/2019 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-Shubhari Kol 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 Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.08.24 11:27:21 IST 4 CRA-2390-2019 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

Pallavi

Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.08.24 11:27:21 IST