Ramawatar Ahirwar vs The State Of Madhya Pradesh
2021 Latest Caselaw 8659 MP

                                                                           1                              CRA-1900-2019
                                             The High Court Of Madhya Pradesh
                                                      CRA No. 1900 of 2019
                                              (RAMAWATAR AHIRWAR AND OTHERS Vs THE STATE OF MADHYA PRADESH)


                         Jabalpur, Dated : 13-12-2021
                                       Ms. Savita Choudhary, learned counsel for the appellants.

                                       Mr. Vinod Tiwari, learned P.L. for the respondent/State.

Mr. R.S. Yadav, learned counsel for the objector.

Heard on I.A. No.3908/2021, which is third application for suspension of sentence and grant of bail to the appellant. No.1-Ramawatar Ahirwar.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 by the appellant No.1/accused against judgment dated 13.02.2019 passed by learned Special Judge (POCSO) Act, Chhatarpur (MP) in Special Sessions Trial No. 122/2015, by which the appellant No.1 has been convicted for offence under Sections 376(2)(jha) of IPC and has been sentenced to undergo R.I. for 10 years and fine of Rs.5000/- with default stipulations.

Prosecution case, in short, is that on 17.09.2015, father of prosecutrix (PW-1) submitted a written report before the In-charge of Police Station-Orchha Road. It is alleged by him, prosecutrix was missing from her house on 16.09.2015. She was

searched, then one person told him that he heard the voice of prosecutrix from the house of one Mahadev Ahirwar, then PW-1 reached there. Prosecutrix was with appellant No.1/accused in the room. He knocked the door. The appellant No.1/accused came out from the room. He and other villagers tried to catch him but appellant No.1/accused ran away from the spot. Prosecutrix aged about 15 years also had gone from that house. Thereafter, prosecutrix was met him near Aganwadi Kendra. He informed that proseuctrix told him that appellant No.1/accused outraged her modesty and also threatened her. Thereafter, prosecutrix disclosed the incident to her mother that appellant No.1/accused committed intercourse with her. Other co-accused persons Govardhan and Dangal took her in the back side of that house and detained the prosecutrix in the room.

Learned counsel for the appellant No.1/accused submits that learned trial Court committed grave error to convict and sentence the appellant No.1/accused. Learned Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.12.16 11:46:28 IST 2 CRA-1900-2019 trial Court did not appreciate the evidence in perspective way. Actually at the time of incident, appellant No.1/accused was talking with prosecutrix. At that time, parents of prosecutrix and other villagers reached there. They caught hold the appellant No.1/accused and beat him. Meanwhile, prosecutrix ran away from the spot. Thereafter, prosecutrix was recovered. She was pressurized to give false statement

against the appellant No.1/accused. It is not proved beyond the reasonable doubt that at the time of incident, prosecutrix was below 18 years. Although, Bhagwan Das Mishra (PW-9) is a Principal of Government Primary School. He deposed before the trial Court that as per admission register, the date of birth of prosecutrix is 02.01.2002. Learned trial Court held that at the time of incident, prosecutrix was 13 years and 9 months. While the father of prosecutrix mentioned the age of prosecutrix in his written report is 15 years. Bagwan Das Mishra (PW-9) did not disclose the source of information of date of birth of prosecutrix. Although, he admitted this fact that at the time of admission of prosecutrix, the father of prosecutrix had come in the school. Father of prosecutrix (PW-1) did not disclose the date of birth of prosecutrix. He deposed before the trial Court that at the time of admission, he disclosed the age of prosecutrix on estimation basis. The mother of prosecutrix gave same evidence in regard of age of prosecutrix. Prosecutrix has been examined by the lady doctor and found that her secondary sexual character is found well developed. No external and internal injury is found on the body of prosecutrix. Therefore, the age of prosecutrix may be above 18 years. At the time of trial, the father of prosecutrix submitted an affidavit vide Ex. D-4. He mentioned this fact that appellant No.1/accused did not commit any offence. Prosecutrix has been examined by the Juvenile Justice Board. She denied all the incident. There are material contradictions and omissions in the evidence of witnesses. Although, this Court has rejected his previous applications on merits. These facts did not consider at that time. Prosecutrix herself filed an affidavit before this Court. She denied all the incident and submit that she has no objection to suspend the execution of sentence of appellant No.1/accused. Appellant No.1/accused is in custody since 13.02.2019 till now. During trial, he remained in jail from 21.09.2015 to

Signature Not Verified 11.01.2016, so he has served almost 3 years sentence out of 10 years jail sentence.

  SAN




Digitally signed by LALIT SINGH RANA
Date: 2021.12.16 11:46:28 IST
                                                                              3                            CRA-1900-2019

This appeal is of the year 2019. 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 No.1 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. Learned counsel for the objector submits that he has no objection to suspend the execution of sentence of appellant No.1 and grant bail.

Considering the argument of both the parties and this fact that age of prosecutrix is disputed. Prosecutrix herself deposed before the Juvenile Justice Board that appellant No.1/accused did not commit any offence, the father of prosecutrix also filed an affidavit before the trial Court in this regard, appellant/accused is in custody since

13.02.2019 till now, during trial, he remained in jail from 21.09.2015 to 11.01.2016, so he has served almost 3 years sentence out of 10 years jail sentence, this appeal is of the year 2019, 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.3908/2021 i s allowed subject to deposit of fine amount, if not already deposited. The custodial sentence awarded to the appellant No.1 shall remain suspended during the pendency of this appeal.

Appellant No.1-Ramawatar Ahirwar 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 28.02.2022 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 Signature Not Verified SAN

L.R.

Digitally signed by LALIT SINGH RANA Date: 2021.12.16 11:46:28 IST 4 CRA-1900-2019

Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.12.16 11:46:28 IST