Indrajeet vs The State Of Madhya Pradesh
2021 Latest Caselaw 3663 MP

                                                                          1                                CRA-3111-2016
                                                  The High Court Of Madhya Pradesh
                                                             CRA-3111-2016
                                                           (INDRAJEET Vs THE STATE OF MADHYA PRADESH)

                                        32
                                        Jabalpur, Dated : 28-07-2021
                                                Heard through Video Conferencing.

                                                Shri Hitendra Kumar Golhani, Advocate for the appellant.
                                                Ku. Kamlesh Tamrakar, Panel Lawyer for the respondent-State.

Record of the court below is available on record.

Appeal is admitted for hearing.

Heard on I.A.No.4409/2021, which is repeat (fifth) application filed by the accused/appellant, under section 389 (1) of Cr.P.C. for suspension of his jail sentence awarded by the Court of learned Special Sessions Judge Seoni, District Seoni (MP), in S.T. No.5/2015 vide its judgment dated 29.6.2016 convicting the appellant/accused for offence punishable under Section 363 of the IPC and sentenced him to undergo RI for 7 year with fine of Rs.10,000/-, under Section 366 of the IPC he is sentenced to undergo RI for 10 years with fine of

Rs.10,000/-& under Section 376(2)(I) of IPC, he is sentenced to undergo RI for 10 years with fine of Rs.10,000/-,with default stipulation, on each count.

A s per prosecution case, on 11.11.2014, accused/appellant kidnapped prosecutrix aged 15 years. Thereafter, he took prosecutrix in the house of other co-accused. Thereafter, accused/appellant and other co-accused committed intercourse with her and accused/appellant and co-accused left prosecutrix in the house of her friend.

Learned counsel for the accused/appellant submits that learned Signature Not Verified SAN trialCourt committed grave error in convicting and sentencing the Digitally signed by ASHWANI PRAJAPATI Date: 2021.07.28 17:55:00 IST 2 CRA-3111-2016 accused/appellant. It is not proved that at the time of incident, prosecutrix (PW/5) was below 18 years. Although, her date of birth is proved by Santram Kumre (PW/2), who admitted this fact at the time of admission. Certificate with regard to date of birth or other documents of prosecutrix are not produced and she affixed some

papers in admission register, so her evidence is not wholly reliable. Parents of prosecutrix did not disclose the date of birth of prosecutrix. Prosecutrix was examined by lady doctor. She deposed before the trial Court that her secondary sexual character of prosecutrix are well developed, so the age of prosecutrix may be above 18 years. Apart from this, the evidence of prosecutrix (PW/5) is not wholly reliable. Learned trial Court already acquitted co- accused under Section 376D of IPC. Prosecutrix is declared hostile by the prosecution, so the evidence of prosecutrix is not reliable. Other witnesses did not support the case of prosecution with regard to the accused/appellant. Accused/appellant is in jail since 15.11.2014 till now. He remained in jail during the trial from 15.11.2014 to 29.6.2016, so he has served 7 years 9 months jail since out of 10 years. This appeal is of year 2016. It is the time of COVID-19, due to which trial will take time to conclude the same. There are material contradictions and omissions in the statement of the witnesses. There is fair chance to succeed in the appeal. There is no likelihood of his absconding and tampering with the evidence. Under the circumstances, if the execution of jail 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 of present accused/

Signature Not Verified appellant.

SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.07.28 17:55:00 IST 3 CRA-3111-2016 Learned Panel Lawyer has opposed the application and prayed for its rejection.

Having considered the arguments advanced by learned counsel for the parties and the fact that age of prosecutrix is disputed, learned trial Court already acquitted co-accused under Section 376-Dha, on the same evidence. accused/appellant is in jail since 15.11.2014 till now, he remained in jail during the trial from 15.11.2014 to 29.6.2016, so he has served 7 years 9 months jail since out of 10 years, so appellant has served 7 years 9 months jail sentence out of 7 years, this appeal is of year 2016, it is the time of COVID-19-

Pandemic, due to which final hearing of this appeal will take time, but without commenting anything on the merit 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- Indrajeet Rajput 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 amount of Rs. 50,000/- to the satisfaction of the trial Court for his appearance before the trial court on 20.9.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.

In 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.

In view of the outbreak of 'Corona Virus disease (COVID-19)'

Signature Not Verified the applicant shall also comply with the rules and norms of social SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.07.28 17:55:00 IST 4 CRA-3111-2016 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 Vi ru s 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

A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.07.28 17:55:00 IST