Chhotepal vs The State Of Madhya Pradesh
2021 Latest Caselaw 3737 MP

                                                                     1                             CRA-346-2017
                                           The High Court Of Madhya Pradesh
                                                      CRA-346-2017
                                                      (CHHOTEPAL Vs THE STATE OF MADHYA PRADESH)

                                   8
                                   Jabalpur, Dated : 30-07-2021
                                         Heard through Video Conferencing.

                                         Shri A.K. Chouhan, Advocate for the appellant.
                                         Ms. Kamlesh Tamrakar, P.L. for respondent/ State

This appeal is already admitted.

Heard on I.A. No. 726/2020, which is first application for

suspension of sentence and grant of bail to the appellant.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 b y the appellant/accused against judgment dated 03.05.2014 passed by learned Second Additional Sessions Judge, Chhatarpurr (MP) in S.T. No. 03/2013 by which the appellant has been convicted for offence under Section 4 of POCSO Act and sentenced to undergo R.I. for 10 years with fine of Rs. 5000/-, with default stipulation.

Prosecution case, in short, is that on 28.06.2013 appellant-accused committed intercourse with prosecutrix aged 14 to 15 years.

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 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. At the time of incident appellant was 17 years. Akhilesh Kumar Ahriwar PW/11 deposed the date of birth of prosecutrix 01.03.2001 but he admitted this fact that at the time of admission he was not posted at that school and he has no knowledge that what is the source of date of birth of prosecutrix, Parents of the Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.07.30 17:21:07 IST 2 CRA-346-2017 prosecutrix did not disclose the date of birth of prosecutrix so the age of or prosecutrix is not proved, Apart from this there are material contradictions and omissions in the evidence of witnesses. Dr. Reeta Chourasiya, PW/5 deposed before the trial court that intercourse is not committed with the prosecutrix, it can be attempt of intercourse.

Appellant/accused is in custody since 30.06.2013. so he has served almost 8 years 1 months of sentence. This appeal is of the year 2017. 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.

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, appellant-accused has served 8 years 1 months out of 10 years, appellant/accused is in custody since 30.06.2013, this appeal is of the year 2017., 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. 726/2020 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-Chhotepal 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 Signature Not Verified SAN the trial Court. The appellant shall appear and mark his presence before Digitally signed by ARVIND KUMAR MISHRA Date: 2021.07.30 17:21:07 IST 3 CRA-346-2017 the trial Court on 23.11.2021 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.

Learned counsel for the State is directed to inform the Victim about 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: 2021.07.30 17:21:07 IST