Madhya Pradesh High Court
Suraj Kol vs The State Of Madhya Pradesh on 8 July, 2021
Author: Rajendra Kumar Srivastava
1 CRA-359-2021
The High Court Of Madhya Pradesh
CRA-359-2021
(SURAJ KOL Vs THE STATE OF MADHYA PRADESH)
7
Jabalpur, Dated : 08-07-2021
Heard through Video Conferencing.
Shri Rajesh Kumar Sen, 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.808/2021 an application for suspension of execution
of sentence awarded to the appellant and grant of bail.
Vide judgment dated 05.01.2021 in Special Case No. 13/2018 passed
by learned 4th Addl. Sessions Judge (Special Judge), Satna, M.P., the
appellant has been convicted for the offence punishable under Section 363 of
IPC and sentenced to undergo R.I. for 3 years with a fine of Rs.100/-, under
Section 366 of IPC and sentenced to undergo R.I. for 3 years with a fine of
Rs.100/- and under Section 376(2)(ii) of IPC and sentenced to undergo R.I.
for 10 years with a fine of Rs.100/- with default stipulation in each.
As per prosecution case, on dated 11.04.2017, prosecutrix (PW-2)
below 16 years was missing from her house. She was searched but not
found. Then, on dated 15.04.2017 FIR was lodged. On dated 19.04.2017,
prosecutrix (PW-2) was recovered. It is alleged by the prosecution that
present appellant-accused kidnapped the prosecutrix and took her at forest
and thereafter he committed intercourse with her.
Learned counsel for the appellant submits that learned Trial Court has
committed grave error to convict and sentence 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.
Signature Not Verified
SAN
Although Ramdeen Rajak Principal (PW-7) deposed before the Trial Court
Digitally signed by PALLAVI SINHA
Date: 2021.07.08 17:37:25 IST
2 CRA-359-2021
that date of birth of prosecutrix is 02.05.2002 but he admitted this fact that he
did not entered the date of birth prosecutrix (PW-2) in the School Register.
No other documentary evidence is available in regards of date of birth of
prosecutrix (PW-2). He also admited this fact that some overwriting is also
there in the Admission Register. PW-1 is mother of prosecutrix. She deposed
before the Trial Court that prosecutrix is 18 years. She did not disclose the
date of birth of prosecutrix. PW-3 is father of prosecutrix. He also did not
disclose the date of birth of prosecutrix. He admitted this fact that he
solemnized marriage of prosecutrix with another person. At that time,
prosecutrix (PW-2) became adult. So, it appears from the evidence of mother
and father of PW-2 that at the time of incident, prosecutrix was above 18
years, so the age of prosecutrix may be 18 years at the time of incident. Apart
from this prosecutrix (PW-2) is wholly consenting party. She was examined
by the doctor. No injury is found on her body. Appellant-accused is also 20
years old. The police statement of (PW-2) is Exhibit D-1. She stated in the
police statement that appellant-accused took her on the pretext of marriage.
PW-2 also admitted this fact that her marriage has been solemnized with
another person. Apart from this, there are material contradiction and omission
in the statement of the prosecution witnesses. This appeal is of year 2021.
The appellant is in jail since 19.04.2017, so he has served almost four year
three months of jail sentence out of his awarded jail sentence of 10 years. It is
the time of COVID-19 due to which final hearing of this appeal will take time.
There is every possibility to succeed in this appeal. There is no likelihood of
his absconding and tampering with the evidence. The execution of jail
sentence of the appellant is already suspended by the learned Trial Court and
has been granted bail and the same has been extended by this Court also.
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.
O n the other hand, learned Panel Lawyer for the respondent-State
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.07.08 17:37:25 IST
3 CRA-359-2021
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 that age of prosecutrix (PW-2) is disputed,
prosecutrix admitted this fact in the police statement (ExP-2) that appellant-
accused took her on the false pretext of marriage, appellant-accused is in
custody since 19.04.2017, so he has served almost four year three month
sentence, at the time of incident, appellant was also below 18 years, this
appeal is of year 2021, it is the time of pandemic COVID-19 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-Suraj Kol 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 same like amount to the
satisfaction of the trial court for his appearance before the learned trial court
on 20.09.2021 and thereafter on all other such subsequent dates, as may be
fixed by the trial court in this regard.
I n 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 in
suo moto W.P.No.1/2020, it would be appropriate to issue the 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
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.07.08 17:37:25 IST
4 CRA-359-2021
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: 2021.07.08 17:37:25 IST
