Sunil Kahar vs The State Of Madhya Pradesh
2021 Latest Caselaw 3247 MP

                                  1                              CRA-2546-2020
       The High Court Of Madhya Pradesh
                  CRA-2546-2020
                  (SUNIL KAHAR Vs THE STATE OF MADHYA PRADESH)

15
Jabalpur, Dated : 13-07-2021
      Heard through Video Conferencing.

      Shri Manish Tiwari, Advocate for the appellant.
      Shri Brijendra Singh Kushwaha P.L. for respondent/ State

Mother of the prosecutrix appeared through VC. She is identified by counsel for appellant.

This appeal is already admitted.

Heard on I.A. No.5158/2020, which is first application for suspension of sentence and grant of bail to the appellant-Sunil Kahar.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 b y the appellant/accused against judgment dated 25.02.2019 passed by learned First Additional Session Judge Nashrullahganj, District- Sehore (MP) in Special Sessions Trial No. 123/2017, by which the appellant has been convicted for offence under

Sections 363 of IPC and has been sentenced to undergo R.I. for 3 years with fine of Rs.1000/-, Section 366 of IPC and has been sentenced to undergo R.I. for 3 years with fine of Rs. 1000/-, Section 376(2) (dha) of IPC and has been sentenced to undergo R.I. for 10 years with fine of Rs. 2000/- & Section 6 of POCSO Act and sentenced to undergo RI for 10 years with fine of Rs. 2000/- with default stipulations respectively.

Prosecution case, in short, is that on 31.03.2017, prosecutrix aged about 17 years, was missing from her house. She was searched but not found, then FIR was lodged. On 22.08.2017 prosecutrix was recovered. It is alleged by the prosecution that present appellant-accused is brother- in-law of the prosecutrix, he kidnapped the prosecutrix and kept her in a house and committed intercourse with her.

2 CRA-2546-2020 Learned counsel for the appellant/accused submits that learned trial Court committed grave error in convicting and sentencing 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. Mahendrapal PW-9 deposed before the trial court

that date of birth of prosecutrix is 02.11.1999 but he admitted that the date of birth of prosecutrix is entered in the admission register. He also admitted that at the time of admission of the prosecutrix he was not posted at the concerned school. No other documentary evidence is available on record on which it can be said that prosecutrix was below 18 years of age. Smt. Rani Kahar PW/2 is mother of prosecutrix, she also did not disclose the date of birth of prosecutrix. PW/1 Prosecutrix herself admitted in her cross examination that he deposed before the Magistrate that she is 19 years, so age of prosecutrix may be above 18 years at the time of incident. Apart from this prosecutrix is wholly consenting party in this matter. Prosecutrix PW/1 deposed before the trial court that appellant-accused visited at some place and kept her in his house but she did not raise any objection during this period. There are so many material contradictions and omissions in the evidence of witnesses. Appellant/accused is in custody since 25.02.2019. During trial he remained in jail since 21.08.2018 to 10.09.2018. This appeal is of the year 2020. There are fair chances to succeed in the appeal. It is time of COVID-19 pandemic, due to this, final hearing of this appeal will take time. Apart from this mother of the prosecutrix already given affidavit stating that she has no objection to grant bail to the appellant-accused. Therefore, the application filed on behalf of the appellant may be allowed and execution of remaining jail sentence may be suspended and he may be released on bail.

Learned PL for the respondent/State has opposed the application.

3 CRA-2546-2020 Mother of the prosecutrix appeared and given affidavit stating that she has not objection to grant of bail to the appellant.

Considering the argument of both the parties and this fact that age of prosecutrix is disputed. Prosecutrix was residing with the appellant- accused for about 4 months, but she has not raised any objection, Appellant/accused is in custody since 25.02.2019, during trial he remained in jail since 21.08.2018 to 10.09.2018, this appeal is of the year 2020, it is time of COVID-19 pandemic, due to this, final hearing of this appeal will take time, but without expressing any opinion on the merits of the case, I am o f 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.5158/2020 is allowed subject to deposit of fine amount, if not already deposited. The custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal.

Appellant-Sunil Kahar 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 27.09.2021 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.

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 :-

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

4 CRA-2546-2020 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 the matter for final hearing in due course.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE MISHRA ARVIND KUMAR MISHRA 2021.07.14 17:25:13 +05'30'