Chintu @ Akash Shrivas vs The State Of Madhya Pradesh
2021 Latest Caselaw 8101 MP

                                                                         1                             CRA-2325-2017
                                            The High Court Of Madhya Pradesh
                                                     CRA No. 2325 of 2017
                                                  (CHINTU @ AKASH SHRIVAS Vs THE STATE OF MADHYA PRADESH)


                                    Jabalpur, Dated : 02-12-2021
                                          Shri R.K. Tripathi, learned counsel for the appellant.

                                          Shri Anuj Singh, learned P.L. for the respondent/State.

Record of the trial Court is available.

Heard on the question of admission.

Appeal is admitted for final hearing

Also heard on I.A. No.298/2020, an application for suspension of sentence and grant of bail to the appellant-Chintu @ Akash Shrivas.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 b y the appellant/accused against judgment dated 18/05/2017 passed by learned Sessions Judge, Seoni (MP) in Special Session Trial No. 37/2016, by which the appellant has been convicted for offences punishable under Section 376(2) of IPC and has been sentenced to undergo R.I. for 10 years, along with fine of Rs. 5,000/- and Section 506 of IPC, sentenced to undergo R.I. for 1 year along with fine of Rs. 1,000/- with default stipulations.

Prosecution case, in short, is that on 20/07/2016, in the morning, about 7 A.M., prosecutrix, aged about 14 years had gone to answer the call of nature thereafter she was returning her home. On the way, the appellant- accused undressed her and committed intercourse with her. The appellant- accused also threaten to kill her.

Learned counsel for the appellant/accused submits that learned trial Court has committed grave error to convict and sentence to the appellant- accused. It is not proved that at the time of incident, the prosecutrix was below 18 years although her date of birth is proved by the Principal S.S. Warkade (PW-3) but he admitted this fact that he has no knowledge what is the source of information of date of birth of the prosecutrix. Other documentary evidence in regard to date of birth of the prosecutrix has not been produced by the prosecution. The prosecutrix was examined by Doctor Signature Not Verified SAN

Digitally signed by KUNDAN SHARMA Date: 2021.12.03 17:55:24 IST 2 CRA-2325-2017 Smt. G. Lakra (PW-5). She admitted this fact that prosecutrix appears to be adult. Her secondary sexual character were developed so the the age of the prosecutrix may be above 18 years. The evidence of prosecutrix is not wholly reliable. The prosecutrix admitted this fact that she received some injury during the incident but doctor Smt. Lakra (PW-5) deposed that she did not

find any external or internal injury on the body of the prosecutrix. FSL report does not corroborate the incident. Panty of the prosecutrix and slide were sent for forensic examination but no sperm and saliva were found on those articles, so, it appears that this is a matter of false implication. There are material contradictions and omissions in the evidence of witnesses. Appellant/accused is in custody since 27/02/2016 till now, thus, he has served the 5 years and 9 months jail sentence out of 10 years. Hon'ble Apex Court in the case of Saudan Singh Vs the State of Uttar Pradesh held that "there may be even convicts in custody in cases other than life sentence cases and in those cases again this broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail". This appeal is of the year 2017. There are fair chances to succeed in the appeal. 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. Hearing argument of both the parties and this fact that prosecutrix deposed before the trial Court that she received some injury during the incident, she has been examined by lady doctor but no external and internal injury has been found on her body, no other eye witness is available on the record, FSL report is negative in regard to prosecutrix, the appellant/accused has served almost 5 years and 9 months sentence out of 10 years, this appeal is of year 2017, the appellant is in custody since 27/02/2016, final hearing of this appeal will take time, but without expressing any opinion on the merits of

Signature Not Verified the case, I am o f the considered opinion that it would be appropriate to SAN

Digitally signed by KUNDAN SHARMA Date: 2021.12.03 17:55:24 IST 3 CRA-2325-2017 suspend the execution of jail sentence awarded to the appellant and grant bail to him.

Consequently, I.A. No.298/2020 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-Chintu @ Akash Shrivas 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 21.02.2022 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.

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

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

kundan

Signature Not Verified SAN

Digitally signed by KUNDAN SHARMA Date: 2021.12.03 17:55:24 IST