Anil Jogi vs The State Of Madhya Pradesh
2021 Latest Caselaw 3268 MP

                                                                         1                               CRA-4031-2018
                                               The High Court Of Madhya Pradesh
                                                          CRA-4031-2018
                                                     (ANIL JOGI AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                                       22
                                       Jabalpur, Dated : 14-07-2021
                                             Heard through Video Conferencing.
                                             Shri Abhinav Dubey, learned counsel for the appellants.
                                             Shri Prashant Mishra, learned P.L. for the respondent/State.

This appeal is already admitted for final hearing. Heard on I.A. No5227/2021, an application for suspension of

sentence and grant of bail to the appellant No.1-Anil Jogi and I.A. No. 11578/2021, which is fourth application for suspension of sentence and grant of bail to the appellant No. 2/Surendra Jogi. Earlier bail applications of appellant No.2 were dismissed as withdrawn.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 b y the appellants/accused against judgment dated 17.05.2018 passed by learned Special Judge, (POCSO) Act, Katni (MP) in Special Case No.76/2015, by which the appellants have been convicted for offence under Sections 366/120-B of IPC and have been sentenced to undergo R.I.

for 10 years with fine of Rs.2000/-, Section 376(2)(Dha) of IPC and has been sentenced to undergo R.I. for 10 years with fine of Rs. 2000/-. Default stipulations have also been imposed by the trial Court.

Prosecution case, in short, is that on 13.06.2014, prosecutrix, aged about 16 years, was missing from her house. She was searched but not found then FIR was lodged. On 13.07.2014, prosecutrix was recovered. It is alleged by the prosecution that present appellants No.1 and 2/accused and co- accused kidnapped and took her at various places and committed intercourse with her.

Learned counsel for the appellants No. 1 and 2/accused submits that learned trial Court committed grave error to convict and sentence the Signature Not Verified SAN appellants No. 1 and 2/accused. Learned trial Court did not appreciate the

Digitally signed by LALIT SINGH RANA Date: 2021.07.14 17:33:47 IST 2 CRA-4031-2018 evidence in perspective way. It is not proved that at the time of incident, prosecutrix (PW-1) was below 18 years. Hetram Pathak (PW-5) is a Principal of Government Tribe Education Guarantee School Gunnor, he deposed before the trial Court that the date of birth of prosecutrix is 03.06.1998 but he admitted in his cross-examination that there is some material irregularity and at the time of admission of prosecutrix, no document of date of birth is

produced. So, the date of birth of prosecutrix is not proved. PW-2 is mother of prosecutrix, she did not disclose the date of birth of prosecutrix. PW-4 is father of prosecutrix, he also did not disclose the date of birth of prosecutrix. Therefore, age of prosecutrix can not be determined on the estimation. So, the age of prosecutrix may be above 16 years. Apart from this, there are material contradictions and omissions in the evidence of witnesses. Prosecutrix (PW-1) deposed before the trial Court that one Om Singh also committed intercourse with her but she did not disclose the name of Om Singh during investigation. So, Om Singh is not made as an accused in this matter. Therefore, it appears that the evidence of prosecutrix (PW-1) is not wholly reliable. Prosecutrix (PW-1) also admitted this fact that she had gone with appellant No.1 and 2/accused so many places. When she was going with appellants No. 1 and 2/accused at various places, then in one place, police officials were present but she did not raise any objection. So, it appears that prosecutrix is wholly consenting party in this matter. No DNA report is available on the record. Appellants No. 1 and 2/accused produced defence witnesses before the trial Court but learned trial Court did not appreciate the evidence of defence witnesses in perspective way. Appellants No.1 and 2/accused are in custody since 17.05.2018 till now. During trial, appellant No. 1/Anil Jogi is remained in jail 1 year 14 days and appellant No. 2 Surendra Jogi is remained in jail 1 year, 5 months and 10 days. So they have served almost half sentence out of 10 years jail sentence. This appeal is of the year 2018. 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. Therefore, Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.07.14 17:33:47 IST 3 CRA-4031-2018 the application filed on behalf of the appellants No. 1 and 2 may be allowed and the period of their remaining jail sentence may be suspended further and they may be released on bail.

Learned P.L. for the respondent/State has opposed the application. Considering the argument of both the parties and this facts that the age of prosecutrix is disputed, prosecutrix also implicated another person in this incident before the trial Court, appellant No. 1 and 2/accused are in custody since 17.05.2018 till now, during trial, appellant No. 1/Anil Jogi is remained in jail 1 year 14 days and appellant No. 2 Surendra Jogi is remained in jail 1 year, 5 months and 10 days, so they have served almost half sentence out of 10 years jail sentence, this appeal is of the year 2018, it is time of COVID-19

due to this 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 appellants No. 1 and 2 and grant bail to them..

Consequently, I.A. No.5227/2021 and I.A. No. 11578/2021 are allowed subject to deposit of fine amount, if not already deposited. The custodial sentence awarded to the appellant No. 1 and 2 shall remain suspended during the pendency of this appeal.

Appellant No. 1-Anil Jogi and appellant No.2-Surendra Jogi be released from custody subject to their furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only), each with one surety each in the like amount, to the satisfaction of the trial Court. The appellants No. 1 and 2 shall appear and mark their presence before the trial Court on 30.09.2021 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.

I n view of the outbreak of 'Corona Virus disease (COVID-19)' the appellants No. 1 and 2 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 Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.07.14 17:33:47 IST 4 CRA-4031-2018 following direction to the jail authority :-

1. The Jail Authority shall ensure the medical examination of the appellants No. 1 and 2 by the jail doctor before their release.

2 . The appellants No. 1 and 2 shall not be released if they are suffering fro m 'Corona Virus disease'. For this purpose appropriate tests will be carried out.

3 . If it is found that the appellants No. 1 and 2 are suffering from 'Corona Virus disease', necessary steps will be taken by the concerned authority by placing them in appropriate quarantine facility.

List the matter for final hearing in due course.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

L.R.

Signature Not Verified SAN

Digitally signed by LALIT SINGH RANA Date: 2021.07.14 17:33:47 IST