Madhya Pradesh High Court
Govind Kachhi (Patel) vs The State Of Madhya Pradesh on 2 December, 2021
Author: Rajendra Kumar Srivastava
1 CRA-84-2016
The High Court Of Madhya Pradesh
CRA No. 84 of 2016
(GOVIND KACHHI (PATEL) Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 02-12-2021
Ms. Premlata Lokhande, Advocate for the appellant.
Shri Dinesh Patel, 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.16072/2019, which is third application filed by the
accused/appellant, under section 389 (1) of Cr.P.C. for suspension of his jail
sentence awarded by the Special Judge, POCSO Act, Damoh, M.P. in S.C.
No. 71/2013 vide its judgment dated 10.12.2015 convicting the
appellant/accused for the offences punishable under Section 363 of IPC and
sentenced him to undergo R.I. for 3 years with a fine of Rs.1,000/- with
default stipulation, Section 366(K) of IPC and sentenced him to undergo R.I.
for 4 years with fine of Rs. 1.500/- with default stipulation, Section 6 of the
POCSO Act, 2012 and sentenced him to undergo R.I. for 10 years with a fine
of Rs. 2,000/- with default stipulation. Earlier two applications were dismissed
on dated 25.07.2016 and 27.07.2017 by this Court.
As per prosecution case, on dated 01.04.2013, prosecutrix aged about
17 years was missing from her house, she was searched but not found.
Thereafter Prosecutrix was recovered from the possession of
appellant/accused. It is alleged by prosecution that appellant/accused took the
prosecutrix at various places and committed intercourse with her.
Learned counsel for the appellant-accused submits that learned trial
Court did not appreciate the evidence in perspective way. Learned trial Court
held that at the time of incident the age of prosecutrix was 17 years 9 months
21 days. As per Asharam Thimha prosecutrix (PW-1) who is the Assistant
Teacher proved that the age of prosecutrix was above 18 years at the time of
incident but he also admitted in his evidence that he has no knowledge, what
is the source of information of date of birth of prosecutrix. The evidence of
Signature Not Verified
SAN
Digitally signed by ROSHNI SINGH
Date: 2021.12.03 16:14:01 IST
2 CRA-84-2016
parents of prosecutrix is not reliable in regard to date of birth of prosecutrix.
Although the first application was dismissed on merit by this Court on
25.07.2016 but this fact is not consider at that time. The age of prosecutrix
may be above 18 years. Prosecutrix (PW-3) deposed before the trial Court
that appellant/accused kept prosecutrix at various places and he also
solemnized marriage with prosecutrix at Garhakota. So it appears that the
prosecutrix is consenting party in this incident. Apart from this, there are
material contradictions and omissions in the statements of the witnesses.
Appellant-accused is in jail since 10.12.2015 till now. He remained in jail
during the trial since 31.10.2013 to 23.01.2014. So actually he has served
substantive sentence including remission i.e.8 years out of 10 years. There is
every possibility to get success in this appeal. This appeal is of year 2016. It
will take time for final disposal. There is no likelihood of his absconding and
tampering with the evidence. In support of his contention, learned counsel for
the appellant has relied upon the judgment passed by the Hon'ble Supreme
Court in the case of Saudan Singh Vs. State of Uttar Pradesh in Special
Leave to Appeal (Crl.) No. 4633/2021. It is opined by Hon'ble the Apex
Court that "there may be even convicts in custody in cases other than life
sentence cases and in those cases again the broad parameter of 50 per cent
of the actual sentence undergone can be the basis for grant of bail." Under
the circumstances, if the execution of jail sentence of the appellant is not
suspended, his right to file appeal will be futile. Hence, prayer is made for
suspension of jail sentence and grant of bail to the present accused/
appellant.
Learned Panel Lawyer has opposed the application.
Having considered the arguments advanced by learned counsel for the
parties and looking to the evidence of the case, it appears that the age of
prosecutrix may be disputed, prosecutrix is consenting party in this matter,
actually, appellant/accused has served substantive sentence and including
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remission i.e. 8 years out of 10 years, this appeal is of the year 2016, so it will
SAN
Digitally signed by ROSHNI SINGH
Date: 2021.12.03 16:14:01 IST
3 CRA-84-2016
take time for final hearing, therefore, without commenting anything on the
merit of the case, I.A. No.16072/2019 is allowed.
It is ordered that subject to payment of fine amount, if not already
deposited, the execution of jail sentence of the appellant-Govind Kachhi
(Patel) shall remain suspended during the pendency of this appeal and he be
released on bail on his furnishing a personal bond for a sum of Rs.50,000/-
(Rupees Fifty Thousand Only) with one solvent surety in the like amount
to the satisfaction of the trial Court for his appearance before the trial Court
on 17.01.2022 and thereafter on all other such subsequent dates, as may be
fixed by the trial court in this regard.
I n case, the appellant is 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.
List this matter for final hearing in due course, as per listing policy.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
R
Signature Not Verified
SAN
Digitally signed by ROSHNI SINGH
Date: 2021.12.03 16:14:01 IST
