Rupendra Nanda @ Upendra @ Chillu vs The State Of Madhya Pradesh
2021 Latest Caselaw 3418 MP

                                                                     1                              CRA-3003-2015
                                           The High Court Of Madhya Pradesh
                                                      CRA-3003-2015
                                          (RUPENDRA NANDA @ UPENDRA @ CHILLU Vs THE STATE OF MADHYA PRADESH)

                                   27
                                   Jabalpur, Dated : 19-07-2021
                                          Heard through Video Conferencing.

                                          Ms. Sarita Acharya, Advocate for the appellant.
                                          Ms. Kamlesh Tamrakar P.L. for respondent/ State

Notice has been served on the complainant. This appeal is already admitted.

Heard on I.A. No. 12481/2021, which is forth application for suspension of sentence and grant of bail to the appellant. Earlier three applications were dismissed as withdrawn.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 b y the appellant/accused against judgment dated 03.10.2015 passed by learned Special Judge, District- Dindori (MP) in Special Sessions Trial No. 32/2014, by which the appellant has been convicted for offence under Sections 366 of IPC and has been sentenced

to undergo R.I. for 5 years with fine of Rs.5000/-, Section 376(2)(n) of IPC and has been sentenced to undergo R.I. for 10 years with fine of Rs. 10000/-, with default stipulations respectively.

Prosecution case, in short, is that on 11.04.2014, prosecutrix below 16 years, was missing from her house. She was searched but not found, then FIR was lodged. On 30.08.2014 prosecutrix was recovered. It is alleged by the prosecution that present appellant-accused kidnapped the prosecutrix and kept her in a house and committed intercourse with her.

Learned counsel for the appellant/accused submits that appellant- accused has been falsely implicated in this case. He further submits that learned trial Court committed grave error in convicting and sentencing Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.07.19 16:52:57 IST 2 CRA-3003-2015 t h e 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. Sakun Tekam PW-13 deposed before the trial court that date of birth of prosecutrix is 06.06.1999 but she admitted that she did not enter the date of birth of prosecutrix in the

admission register. She did not know the source of date of birth of the prosecutrix, so it is evident that source of date of birth of prosecutrix is not proved. Prosecutrix PW.1 her mother PW/2 and brother PW/4 also did not disclose the date of birth of prosecutrix ,so age of the prosecutrix may be 18 years. It is evident from the record that prosecutrix is wholly consenting party. She was residing with the appellant-accused about 4 months 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 03.10.2015. During trial he remained in jail since 02.09.2014 to 20.01.2015. so he has served almost 6 years of sentence. This appeal is of the year 2015. 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, 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. 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 during this period, appellant/accused is in custody since 03.10.2015, during trial he remained in jail since 02.09.2014 to 20.01.2015. so he has served almost 6 years of sentence out of 10 years, this appeal is of the Signature Not Verified SAN year 2015, it is time of COVID-19 pandemic, due to this, final hearing of Digitally signed by ARVIND KUMAR MISHRA Date: 2021.07.19 16:52:57 IST 3 CRA-3003-2015 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. 12481/2021 i s allowed subject to deposit of fine amount, if not already deposited. The execution of custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal.

Appellant-Rupendra Nanda @ Upendra @ Chillu be released from custody subject to his furnishing a personal bond in the sum of Rs.

50,000/- (Rupees Fifty Thousand Only), w ith 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.

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. Signature Not Verified SAN Learned counsel for the State is directed to inform the Victim about Digitally signed by ARVIND KUMAR MISHRA Date: 2021.07.19 16:52:57 IST 4 CRA-3003-2015 this order and also supply a copy of this order to her.

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

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

MISHRA

Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.07.19 16:52:57 IST