Sujeet Kumar Saket @ Pankaj vs The State Of Madhya Pradesh
2021 Latest Caselaw 94 MP

                                  1                                CRA-362-2021
         The High Court Of Madhya Pradesh
                    CRA-362-2021
          (SUJEET KUMAR SAKET @ PANKAJ Vs THE STATE OF MADHYA PRADESH)

3
Jabalpur, Dated : 23-02-2021

      Shri R.K. Sen, learned counsel for the appellant.
      Shri Ram Ji Pandey, learned P.L. for the respondent-State.

Record of trial Court has been received.

Heard on the question of admission.

Appeal is admitted for final hearing.

Also hard on I.A.No.813/2021, which is first application for suspension of execution of jail sentence and grant of bail to the appellant/accused.

Appellant stands convicted for the offences punishable under Sections 376 and 450 of IPC and has been sentenced to undergo RI for 10 years with fine of Rs.5,000/- and R.I. for 5 years with fine of Rs.1,000/- respectively. Default stipulations have also been imposed by the trial Court.

As per prosecution case, on 18.07.2013, when prosecutrix was in her house, present appellant entered into her house and committed sexual intercourse with her forcefully and also threatened her.

Learned counsel for the appellant submits that the judgment passed by the trial Court is bad in law and deserves to be set aside. He submits that the trial Court has failed to consider the fact that the prosecution has not proved its case beyond reasonable doubt. As per the medical report of proesecutrix, her hymen was found old ruptured and she was habitual of performing sexual intercourse. As per the statement of prosecutrix, one Umesh Saket was also there but this fact has not been mentioned in the FIR. Moreover, PW-7 (friend of prosecutrix) and PW-8 (father of prosecutrix) have stated in their cross-examinations that the prosecutrix 2 CRA-362-2021 informed them about the presence of Umesh Saket. Moreover, as per friend of prosecutrix i.e. PW-7 Umesh Saket had also performed sexual intercourse with the prosecutrix. She also accepted the fact about the falsely implication of present appellant instead of Umesh Saket. He further argued that the statement of Dr. P.D. Agrawal (PW-1) is also

important wherein he stated that he is unable to explain about the ability of appellant of performing sexual intercourse. In fact, the prosecutrix was in love affair with another person and when this fact came to notice of present appellant, they have falsely implicated him in the case. The appellant is in jail since 20.11.2020 and remained in jail during trial since 20.07.2013 to 18.11.2013. The appeal is of year 2021 and will take sufficient time in its conclusion. There is every possibility to get success in the appeal. There is no likelihood of his absconding. Under the circumstances, if the sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of his jail sentence and grant of bail.

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 and the aforesaid offence is also serious in nature. It is further submitted that FSL report is against the present appellant. Therefore, sentence of the appellant should not be suspended.

Heard and perused the record.

On perusal, it is found that the appellant was facing trial for the offences punishable under Sections 450, 376 and 506 Part-II of the IPC as well as Section 4 of POCSO Act, but the learned trial Court has not found sufficient evidence to convict the appellant except the offences under Sections 376 and 450 of IPC. The trial Court has found that the 3 CRA-362-2021 prosecution has failed to prove that at the time of incident, prosecutrix was minor. The appellant took the defence before the trial Court that the prosecutrix was in love affair with another person and on restricting them, he has been falsely implicated in the case. However, the learned trial Court found that the prosecutrix has denied his relation with another person but it also appears from her statement that she used to talk with him. The learned trial Court has also relied on the FSL report wherein semen was found but the report has not been proved in trial, moreover the medical report of appellant has also not supported the said fact. On perusal of statements of other witnesses, especially, father (PW-8) and

friend (PW-7), the presence of Umesh Saket and sexual assault by him is also reflected which prima facie creates doubt on the credibility of prosecution.

Having considered the arguments advanced by learned counsel for the parties, but without commenting anything on the merit of the case, the said I.A. No.813/2021 is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant/accused-Sujeet Kumar Saket @ Pankaj 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 26.04.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.

In view of the outbreak of 'Corona Virus disease (COVID-19)' the appellant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo moto W.P.No.1/2020, it would be appropriate to issue the following direction to the jail authority :-

4 CRA-362-2021

1. The Jail Authority shall ensure the medical examination of the appellant by the jail doctor before his release.

2. The appellant shall not be released if he is suffering from 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

3. If it is found that the appellant is suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing him in appropriate quarantine facility.

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

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

sp Digitally signed by SAVITRI PATEL Date: 2021.02.24 17:46:18 +05'30'