Madhya Pradesh High Court
Sandeep Athya vs The State Of Madhya Pradesh on 1 July, 2021
Author: Rajendra Kumar Srivastava
1 CRA-2536-2021
The High Court Of Madhya Pradesh
CRA-2536-2021
(SANDEEP ATHYA Vs THE STATE OF MADHYA PRADESH)
2
Jabalpur, Dated : 01-07-2021
Heard through Video Conferencing.
Shri Jafar Khan, Advocate for the appellant.
Shri Manoj Kumar Jha, P.L. for the respondent-State.
Record of the trial Court has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Heard on I.A. No.6170/2021 an application for suspension of
execution of sentence awarded to the appellant and grant of bail.
Vide judgment dated 16.03.2021 in S.C.27/2018 passed by learned
Special Judge, Damoh, M.P., the appellant has been convicted for the
offence punishable under Section 3(A)4 of POCSO Act, 2012.
As per prosecution case, on dated 12.08.2016, prosecutrix aged
below 17 years was returning to her home after doing her job from
Sanjeevni Hospital, Damoh. Appellant-accused met her on the way and
asked her to drop her to her house. She sat on his motorcycle but instead
of leaving to her, appellant took her at another house where co-accused
locked prosecutrix and appellant-accused in a room. Thereafter,
appellant-accused slapped her and committed intercourse with her.
Learned counsel for the appellant submits that learned Trial Court
ha s committed grave error to convict and sentence to the appellant-
accused. Learned Trial Court did not appreciate the evidence in
perspective way. Prosecution becomes failed to prove the age of
prosecutrix that at the time time incident she (PW-1) was below 18
years. She herself deposed before the Trial Court that the at the time of
incident, she was doing job at Sanjeevni Hospital and she was 18 years.
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.07.01 17:52:15 IST
2 CRA-2536-2021
It is not disputed that at the time of incident, prosecutrix was doing job at
Sanjeevni Hospital. The mother of prosecutrix (PW-1) deposed before
the Trial Court that she gave birth to prosecutrix in the year 1998 and at
the time of prosecturix's marriage with appellant, prosecutrix was 20
years old. So, considering the evidence of prosecutrix and her mother, it
can be said that at the time of incident, the age of prosecutrix might be
above 18 years. She deposed before the Trial Court that appellant-
accused is her husband. Both have solemnized marriage with each other
and out of their wedlock, they have been blessed with one child. So, it
also appears from the record that appellant-accused is father of the child
of prosecutrix (PW-1) and prosecutrix is the wife of appellant-accused.
Prosecutrix (PW-1) did not support the case of prosecution. She has
been declared hostile by the prosecution. It is true that the father of
prosecutrix did not support the defence of appellant-accused but the
mother of the prosecutrix deposed before the Trial Court that prosecutrix
and appellant-accused already solemnized marriage with each other.
Prosecutrix lodged the report due to some confusion. So, it is evident that
appellant-accused is husband of the prosecutrix and the father of the child
of the prosecutrix. There are material contradiction and omission in the
evidence of prosecution witnesses. He remained in jail during trial from
21.02.2018 to 25.08.2018 and is in jail since 16.03.2021. There is every
possibility to succeed in this appeal. This appeal is of year 2021. It is the
time of COVID-19 due to which final hearing of this appeal will take
time. There is no likelihood of his absconding and tampering with the
evidence. Under the circumstances, if the execution of sentence of the
appellant is not suspended, his right to file appeal will be futile. Hence,
prayer is made for suspension of jail sentence and grant of bail to the
present appellant-accused.
Signature Not Verified
SAN
On the other hand, learned Panel Lawyer for the respondent-State
Digitally signed by PALLAVI SINHA
Date: 2021.07.01 17:52:15 IST
3 CRA-2536-2021
opposes the submission of appellant's counsel and prays for rejection of
application.
Heard and perused the record.
Having considered the arguments advanced by learned counsel for
the parties and looking to the facts of the case that age of prosecutrix is
disputed, she herself admitted this fact that she is wife of appellant-
accused and he is father of the child of prosecutrix, it is also admitted
fact that at the time of marriage prosecutrix was 20 years, so primafacie
it is crystal clear that appellant-accused is husband of prosecutrix,
appellant-accused remained in jail during trial from 21.02.2018 to
25.08.2018 and is in jail since 16.03.2021, this appeal is of year 2021, it
is the time of COVID-19 due to which final hearing of this appeal will
take time. due to which final hearing of this appeal will take time but
without commenting anything on the merits of the case, the said I.A. is
allowed.
It is ordered that subject to payment of fine amount, if not already
deposited, the execution of jail sentence of the appellant-Sandeep
Athya shall remain suspended during the pendency of this appeal and he
b e 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
same like amount to the satisfaction of the trial court for his appearance
before the learned trial court on 06.09.2021 and thereafter on all other
such subsequent dates, as may be fixed by the trial court in this regard.
In case, the appellant is found absent on any date fixed by the trial
court then the said court shall be free to issue and execute warrant of
arrest without referring the matter to this Court, provided the Registry of
this Court is kept informed.
Further, in view of the order passed by the Hon'ble Supreme Court
Signature Not Verified
in suo moto W.P.No.1/2020, it would be appropriate to issue the
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.07.01 17:52:15 IST
4 CRA-2536-2021
following direction to the jail authority:-
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, as per listing policy.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
Pallavi
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.07.01 17:52:15 IST
