Phoolchand vs The State Of Madhya Pradesh
2021 Latest Caselaw 8609 MP

                                                1
                                                                                       CRA No.197/2020

               High Court of Madhya Pradesh, Jabalpur
                           Bench at Indore
             Criminal Appeal No.197/2020
Indore, Dated 10.12.2021
         Shri Swapnil Sharma, learned counsel along with Shri

Samanvay Sharma, learned counsel for appellant Phoolchand s/o

Radheshyam Kumhar (Prajapat).

         Shri Sameer Verma, learned Panel Lawyer for the respondent /

State of Madhya Pradesh.

Heard on IA No.28929/2021, a repeat (third) application

under Section 389 (1) of the Code of Criminal Procedure, 1973 for

suspension of jail sentence and grant of bail filed on behalf of the

appellant.

The present appellant has been convicted and sentenced by

learned Additional Sessions Judge Garoth, District Mandsaur (MP)

in Sessions Trial No.873/2015 vide judgment dated 16.12.2019, as

under: -

                 Conviction                                Sentence
     Section              Act              RI        Fine amount      Imprisonment in lieu of fine
   363           IPC            5 years             Rs.1,000/-        1 month RI
   376 (2) (n)   IPC            10 years            Rs.2,000/-        2 months RI

Counsel for the appellant has submitted that repeat second

application (IA No.6744/2020) for suspension of sentence of the

appellant was dismissed on merits vide order dated 23.06.2021 with

liberty to renew his prayer after completion of two years' of

incarceration.

CRA No.197/2020

Learned counsel for the appellant has submitted that the

proscutrix (PW-8) was major at the time of incident and was a

consenting party, which is also apparent from the fact that she was

married and was mother of two children which is also admitted in

paragraph 8 of her deposition. She has also admitted that she stayed

with the appellant for around ten months and thus, it is submitted

that the appellant be released on bail.

So far as age of the prosecutrix is concerned, it is submitted

that even according to the learned Judge of the trial Court, her age is

17 years 1 month and 26 days whereas, according to the counsel for

the appellant, the age of the prosecutrix is also disputed, as scholar

register has been filed in proof of her age.

Thus, it is submitted that the sentence awarded to the

appellant be suspended, as the final disposal of the appeal is likely to

take sufficiently long time.

Counsel for the respondent / State, on the other hand, has

opposed the prayer.

On due consideration of the rival submissions and on perusal

of the record including the statement of the prosecutrix, as also the

last order dated 23.06.2021 passed by this Court in IA

No.6744/2020, this Court finds force with the contentions raised by

the learned counsel for the appellant and in the considered opinion of

this Court, the appellant has made out a case for grant of suspension

CRA No.197/2020

of jail sentence.

Accordingly, without expressing any opinion on merits of the

case, IA No.28929/2021 is allowed and it is directed that upon

depositing fine amount, if any, and on furnishing a personal bond by

the appellant in the sum of Rs.50,000/- (Rupees fifty thousand

only) with a solvent surety in the like amount to the satisfaction of

the learned trial Court, for his / her regular appearance before

concerned trial Court, the execution of the custodial part of the

sentence imposed against the appellant shall remain suspended, till

the final disposal of this appeal.

The appellant, after being enlarged on bail, shall mark his /

her presence before the concerned trial Court on 20.04.2022 and on

all such subsequent dates, as may be fixed by the concerned Court in

this regard.

It is also observed that if the appellant (s) is found in any of

the criminal activities, after his release on bail / suspension of

sentence, then the present bail / suspension order shall stand

cancelled without further reference to this Court; and the State /

prosecution will be free to arrest the accused in the present case also.

C. c. as per rules.

(Subodh Abhyankar) Judge rcp

RAMESH CHANDRA PITHWE 2021.12.11 15:49:04 +05'30'