Dinesh vs The State Of Madhya Pradesh
2021 Latest Caselaw 3463 MP

                                                                       1                            CRA-5840-2018
                                             The High Court Of Madhya Pradesh
                                                        CRA-5840-2018
                                                          (DINESH Vs THE STATE OF MADHYA PRADESH)

                                    17
                                    Jabalpur, Dated : 20-07-2021
                                            Heard through Video Conferencing.
                                            Shri Mahendra Singh Rajpoot, Advocate for the appellant.
                                            Shri Nishant Yadav, P.L. for the respondent-State.

Shri Ravindra Singh Thakur, Advocate for the complainant. Record of the trial Court has been received.

Heard on the question of admission.

Appeal is admitted for final hearing.

Now, heard on I.A. No.5404/2021 a repeat application (second) for suspension of execution of sentence awarded to the appellant and grant of bail. The first was dismissed as withdrawn.

Vide judgment dated 29.07.2017 in S.C. No. 100062/2016 passed by learned Sessions Judge/Special Judge (POCSO Act), Harda, Distt.-Harda, M.P., the appellant has been convicted for the offence punishable under Sections 376(2-i) of IPC and sentenced to undergo R.I. for 10 years with a

fine of Rs.2,000/- & under Section 3(ka)/4 of POCSO Act and sentenced to undergo R.I. for 10 years with a fine of Rs.2,000/- with default stipulation in each.

As per prosecution case, on dated 08.12.2016, appellant-accused committed intercourse with the prosecutrix aged below 16 years.

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 beyond reasonable doubt that at the time of incident, prosecutrix was below 18 years. Dr. G.A. Kushwah (PW-6) determined the age of prosecutrix in between 15-17 years. So, the age of prosecutrix might be Signature Not Verified SAN above 18 years at the time of incident. Parents of prosecutrix did not disclose

Digitally signed by PALLAVI SINHA Date: 2021.07.20 17:57:27 IST 2 CRA-5840-2018 the date of birth of prosecutrix. Both parties are of Korku caste, which comes under Scheduled Tribe. They loved each other. They wanted to solemnize marriage with each other but at that time parents of prosecutrix were not ready to accept their relation, so prosecutrix voluntarily came to the appellant- accused. Thereafter, prosecutrix got pressurized to lodge false report against the appellant-accused. During the trial, both parties entered into compromise.

They are agree to solemnize marriage with each other. They filed a compromise petition in this regard. Prosecutrix is residing in the house of appellant-accused so it is a matter of consent. There are material contradiction and omission in the statement of the prosecution witnesses. The appellant is in jail since 29.07.2017 and during trial he remained in jail from 21.12.2016 to 12.01.2017, so he has served substantial jail sentence. This appeal is of year 2018. 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. 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 opposes the submission of appellant's counsel and prays for rejection of application.

Learned counsel for the complainant submits that both parties have entered into compromise and they have filed a compromise petition. Prosecutrix is residing in the house of appellant-accused. Both parties are ready to solemnize marriage with each other according to rites and rituals. So, he has no objection if appellant be released on bail.

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 is disputed, doctor Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.07.20 17:57:27 IST 3 CRA-5840-2018 determined the age of prosecutrix in between 15-17 years, so age of prosecutrix might be above 18 years at the time of incident, apart from this, she is residing in the house of appellant-accused, both are ready to solemnize marriage with each other according to rites and rituals, appellant is in jail since 29.07.2017 and during trial he remained in jail from 21.12.2016 to 12.01.2017, so he has served substantial jail sentence, this appeal is of year 2018, 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-Dinesh 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 04.10.2021 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 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 Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.07.20 17:57:27 IST 4 CRA-5840-2018 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: 2021.07.20 17:57:27 IST