Madhya Pradesh High Court
Brajesh Yadav vs The State Of Madhya Pradesh on 3 December, 2021
Author: Rajendra Kumar Srivastava
1 CRA-3546-2017
The High Court Of Madhya Pradesh
CRA No. 3546 of 2017
(BRAJESH YADAV Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 03-12-2021
Shri Ashish Kumar Kurmi, Advocate for the appellant.
Shri Dinesh Patel, Panel Lawyer for the respondent-State.
Heard on admission.
Appeal is admitted for hearing.
Heard on I.A.No. 10504/2021 (fourth application), which is an
application filed by the appellant under Section 389(1) of the Cr.P.C. for
suspension of sentence and grant of bail. The other three applications
were dismissed as withdrawn respectively vide orders dated
04.12.2018, 26.02.2020 and 23.09.2020.
Accused/appellant has been convicted vide impugned judgment
dated 23.08.2017 passed by learned Addl. Sessions Judge, Bijawar,
(M.P.) in S.C. No.50/2015 under Section 363 of IPC and has been
sentenced to undergo rigorous imprisonment for 7 years with fine of
Rs.1000/-, Section 366 of IPC and has been sentenced to undergo
rigorous imprisonment for 10 years with fine of Rs.1000/- and Section
376 (2) (i)(N) of IPC and has been sentenced to undergo rigorous
imprisonment for 10 years with fine of Rs.10,000/- and Section 6 of
POCSO Act and has been sentenced to undergo R.I. for 10 years with
fine of Rs. 1,000/- with default stipulations in each.
A s per prosecution story, on dated 11.04.2015, prosecutrix aged
below 16 years was missing from her house. She was searched but not
found. Then gum insan report bearing No. 4/2015 was registered.
Thereafter, prosecutrix was recovered. It is alleged by the prosecution
that appellant-accused and co-accused kidnapped prosecutrix.
Thereafter, present appellant-accused committed intercourse with her.
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Date: 2021.12.10 12:35:53 IST
2 CRA-3546-2017
Learned counsel for the appellant-accused submits that learned
trial Court committed grave error to convict and sentence to the
appellant/accused. Learned trial Court did not appreciate the evidence
in perspective way. It is not proved that at the time of incident,
prosecutrix was below 18 years. Although Matadin Prajapati PW-6
deposed before the trial Court that the date of birth of prosecutrix is
08.11.2001 vide admission register Exhibit P-13 but he admitted that at
the time of admission of prosecutrix in the school he was not posted in
that school. He has no knowledge about the source of information of date
of birth of prosecutrix. PW-1 is father of prosecturix and PW-2 is mother
of prosecutrix but they did not disclose the date of birth of prosecutrix.
Although prosecution determined the age of prosecutrix through
ossification test. In this regard, X-ray report is available on the record
that is not exhibited but this document can be read in evidence in favour
of the appellant-accused. In this report, the age of prosecutrix was
between 16-17 years at the time of incident due to this, the age of
prosecutrix may be above 18 years. Prosecutrix PW-3 herself admitted in
her evidence that she ran away with appellant-accused. So, prosecutrix is
consenting party in this matter. At the time of incident, appellant-accused
was 19 years. There are material contradictions and omissions in the
evidence of witnesses. This appeal is of the year 2017. The appellant is
in jail since 24.04.2015. So, he has served his actual jail sentence of 6
years and 7 months of jail sentence out of 10 years. 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
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those cases again the broad parameter of 50 per cent of the actual
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Date: 2021.12.10 12:35:53 IST
3 CRA-3546-2017
sentence undergone can be the basis for grant of bail." Final hearing of
this appeal will take considerable time for its final disposal. There is
fair chance to succeed in the appeal. Under these circumstances, i f the
sentence of the appellant/accused is not suspended, purpose to file this
appeal will be futile. Learned trial Court has already acquitted co-
accused Ramswaroop on the same evidence. Hence, prayer is made for
suspension of execution of jail sentence and grant of bail of present
accused/appellant.
Learned counsel for the respondent-State opposes the same
submitting that the impugned judgment of conviction and order of
sentence is based on proper appreciation of oral as well as documentary
evidence and the appellant has committed grave offence. Therefore,
sentence of the appellant should not be suspended.
Hearing arguments of both the parties and the facts that age of
prosecutrix is disputed, she may be a consenting party in this incident,
appellant-accused is in custody since 24.04.2015, so he has served his
actual jail sentence of 6 years and 7 months of jail sentence out of 10
years, final hearing of this appeal will take time, but without commenting
anything on the merits of the case, I.A.No. 10504/2021 is allowed.
It is ordered that subject to payment of fine amount, if not already
deposited, the execution of jail sentence of accused/appellant-Brajesh
Yadav shall remain suspended during the pendency of this appeal and he
shall be released on bail on his furnishing 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 08.03.2022 and thereafter on all other such
subsequent dates, as may be fixed by the trial Court in this regard.
In case, accused/appellant is found absent on any date fixed by the
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trial Court then the said Court shall be free to issue and execute warrant
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4 CRA-3546-2017
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.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
Pallavi
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Digitally signed by PALLAVI SINHA
Date: 2021.12.10 12:35:53 IST
