Vinod Gendle vs The State Of Madhya Pradesh
2021 Latest Caselaw 2174 MP

                                                                  1                               CRA-3411-2019
                                         The High Court Of Madhya Pradesh
                                                    CRA-3411-2019
                                                  (VINOD GENDLE Vs THE STATE OF MADHYA PRADESH)

                                  9
                                  Jabalpur, Dated : 08-06-2021
                                        Heard through Video Conferencing.

                                        Mr. Siddharth Datt, learned counsel for the appellant.
                                        Mr. Kunwar Singh Patel, learned 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.7213/2019, which is an 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 23rd Additional Sessions Judge Bhopal, District-Bhopal (MP), in S.T. No.349/2017 vide its judgment dated 11.10.2018 convicting the appellant/accused under Section 363 and sentenced him to undergo R.I. for 3 years with fine of Rs.500/-, under Section 366 of the Indian Penal Code and

sentenced him to undergo R.I. for 7 years with fine of Rs.500/- and Section 376(2)(i)(n) of the Indian Penal Code and sentenced him to undergo R.I. for 10 years with fine of Rs.2,000/-, with default stipulations.

A s per prosecution case, on 07.01.2017, prosecutrix was missing, she was searched but not found and the F.I.R was lodged. Thereafter, on 13.01.2017, prosecutrix was recovered from the custody of the appellant. The prosecutrix has stated in her statement that the present appellant kidnapped her and took her in Bilaspur where he committed intercourse with her.

Signature Not Verified SAN Learned counsel for the accused/appellant submits that the Digitally signed by JULIE SINGH Date: 2021.06.08 17:26:04 IST 2 CRA-3411-2019 learned trial Court has committed grave error in convicting and sentencing the appellant. Learned trial Court did not appreciate the evidence in proper perspective. Prosecution has totally failed to prove the age of the prosecutrix that she was below 18 years of age at the time of the incident. Usha Sharma (P.W-4) is an Assistant Teacher,

she deposed before the trial Court that the date of birth of the prosecutrix is mentioned in school register as 31.05.2004 but she admitted that she entered the date of birth of the prosecutrix on her physic, no document was produced by the parents of the prosecutrix, so it appears that Usha Sharma (P.W-4) entered the age of the prosecutrix on estimate basis, so the evidence is not reliable. The mother of the prosecutrix stated that her marriage was solemnized in the year 1995 and the prosecutrix was born between the year of 1999- 2000. Prosecutrix was examined by Dr. Fizalat Khanam (P.W-5), she deposed before the trial Court that her secondary sexual character is found to be well developed, so it appears that the age of the prosecutrix may be above 18 years of age. Apart from this, when the prosecutrix was examined by Dr. Fizalat Khanam (P.W-5), she has stated that she had gone with the appellant voluntarily, so it is a matter of consent. Accused/appellant is in jail since 13.01.2017 till now, so he has served almost half of the jail sentence. This appeal is of year 2019, it is the time of COVID-19 pandemic and 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 their absconding and tampering with the evidence. Under the circumstances, if the

Signature Not Verified execution of jail sentence of the appellant is not suspended, their right SAN

Digitally signed by JULIE SINGH Date: 2021.06.08 17:26:04 IST 3 CRA-3411-2019 to file appeal will be futile. Hence, prayer is made for suspension of jail sentence and grant of bail of present accused/ appellant.

Learned Panel Lawyer has opposed the application and prayed for its rejection.

Having considered the arguments advanced by learned counsel for the parties and this fact that the age of the prosecutrix is disputed. Considering the statement of the prosecutrix that she may be consenting party, accused/appellant is in jail since 13.01.2017 till now, the appellant has served almost half years of his jail sentence, this appeal is of year 2019, it is the time of COVID-19 pandemic and

trial will take time to conclude the same 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-Vinod Gendle 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 26th of August, 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)' the applicant shall also comply with the rules and norms of social Signature Not Verified SAN

Digitally signed by JULIE SINGH Date: 2021.06.08 17:26:04 IST 4 CRA-3411-2019 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 applicant 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

julie

Signature Not Verified SAN

Digitally signed by JULIE SINGH Date: 2021.06.08 17:26:04 IST