Kishori @ Halkai Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 4754 MP

                                   1                              CRA-1291-2019
        The High Court Of Madhya Pradesh
                   CRA-1291-2019
            (KISHORI @ HALKAI KUSHWAHA Vs THE STATE OF MADHYA PRADESH)

15
Jabalpur, Dated : 26-08-2021
      Heard through Video Conferencing.

      Shri Pradeep Kumar Naveriya, Advocate for the appellant.
      Shri Yadvendra Dwivedi, Panel lawyer for the respondent/ State.

None for the objector.

Detention report of the appellant has been received. Record of the court below is available on record. Appeal is admitted for hearing.

Now, heard on I.A. No.7875/2020 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 31.12.2018 passed by learned Special Judge, POCSO Act, Tikamgarh in Spl. Case No. 54/17, by which the appellant has been convicted for

offence punishable under Section 363 of IPC and has been sentenced to undergo R.I. for 5 years with fine of Rs.1000/-, Section 366 of IPC and has been sentenced to undergo R.I. for 5 years with fine of Rs. 1,000/-, Section 376(2)(n) of IPC & Sectino 5(1)/6 of POCSO Act and sentenced to undergo R . I. f o r 10 years with a fine of Rs. 1,000/- with default stipulations respectively.

Prosecution case, in short, is that on dated 23.03.2017, prosecutrix (PW-3) below 16 years was missing from her house. She was searched but not found. FIR was lodged. On dated 28.04.2017, prosecutrix was recovered. It is alleged by the prosecution that appellant-accused kidnapped prosecutrix and took her at Delhi. Thereafter, he committed intercourse with her.

2 CRA-1291-2019 Learned counsel for the appellant/accused submits that the 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. Although, prosecution produced Kalicharan Soni (PW-12) and Sheikh Majeed (PW-13) who are respectively Principal

and Teacher of the school. They disclosed the date of birth of prosecutrix as 01.07.2003 but source of date of birth is not proved. These witnesses did not disclose what is the source of information of date of birth of prosecutrix. Ramkunwar (PW-5) is the mother of the prosecutrix. Considering the evidence of PW-5, the age of prosecutrix might be above 18 years at the time of incident. Prosecutrix PW-3 went with appellant- accused at various places and she did not raise any objection during that period. She lived with appellant-accused at Delhi. She did not raise any objection at Delhi. So, it appears from the evidence that the prosecutrix is consenting party. There are material contradiction and omission in the evidence of the witnesses. The appellant-accused is jail since 29.04.2017 so he has served 5 years 1 month out of 10 years, so he has served almost substantial sentence, this appeal is of the year 2017. 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. Considering the submissions of both the parties as well as circumstances of the case and the facts that age of prosecutrix is disputed, prosecutrix did not raise any objection, she went to various places with appellant-accused at Delhi, at that place she did not raise any objection, appellant-accused is in jail since 29.04.2017, from the detention report, it is mentioned that appellant has served 5 years 1 month of jail sentence out of 10 3 CRA-1291-2019 years, so he has served substantial jail sentence 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, 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.7875/2020 is allowed subject to deposit of fine amount, if not already deposited. The execution of custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal.

Appellant-Kishori @ Halkai 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 30.10.2021 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 4 CRA-1291-2019 placing him in appropriate quarantine facility.

Learned counsel for the State is directed to inform the Victim about this order and also supply a copy of this order to her.

List the matter for final hearing in due course. C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

Pallavi