Madhya Pradesh High Court
Chhatrapal Bais vs The State Of Madhya Pradesh on 9 June, 2021
Author: Rajendra Kumar Srivastava
1 CRA-1499-2016
The High Court Of Madhya Pradesh
CRA-1499-2016
(CHHATRAPAL BAIS Vs THE STATE OF MADHYA PRADESH)
24
Jabalpur, Dated : 09-06-2021
Heard through Video Conferencing.
Shri Indrajeet Singh Yadav, learned counsel for the appellant.
Shri Pradeep Dwivedi, P.L. for the respondent-State.
Record of the court below is available on record.
Appeal is admitted for final hearing.
Heard on I.A.No.13056/2020, 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 learned 1st Addl. Sessions Judge, Beohari, Distt.-
Shahdol, (MP), in Session Trial No. 278/14 vide i t s judgment dated
27.05.2016 convicting the appellant/accused under Section 363 of IPC and
sentenced to undergo R.I. for 3 years with a fine of Rs. 1,000/-, under
Section 376(2) of IPC and sentenced to undergo R.I. for 10 years with a fine
of Rs. 3,000/- and under Section 5(L)/6 of POCSO Act and sentenced to
undergo R.I. for 10 years with a fine of Rs. 3,000/- with default stipulation, as
mentioned in the impugned judgment.
As per prosecution case, on dated 26.07.2014, prosecutrix aged below
16 years was missing from her house at night. She was searched but not
found. An FIR was lodged. On dated 31.07.2014, prosecutrix was recovered
from the possession of appellant-accused. It is alleged by the prosecution
that present appellant-accused and co-accused kidnapped her and thereafter,
appellant-accused took her at Bhopal and committed intercourse with her.
L e a r n e d counsel for the appellant/accused submits that
accused/appellant has been falsely implicated in this case. Learned Trial Court
has committed grave error to convict and sentence to the appellant-accused.
Learned Trial Court did not appreciate the evidence in perspective manner.
Prosecution is totally failed to prove the age of prosecutrix that at the time of
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incident, she was below 18 years. Learned Trial Court itself held in its
judgment that at the time of incident, prosecutrix was between 15-17 years.
So, it appears that the learned Trial Court convicted and sentenced the
appellant-accused on the basis of estimated age of prosecutrix. The parents
of prosecutrix did not disclose the date of birth of prosecutrix. At the time of
admission in the school, the source of her date of birth is not produced at
concerned school. So, exact date of birth is not proved in this matter.
Therefore, at the time of incident, the prosecutrix must have been above 18
years old. Prosecutrix PW-1 herself deposed before the Trial Court that at the
time of incident, she was sleeping in her house. She opened the door and
came out from the house, then she closed the door from the outside.
Thereafter, prosecutrix reached to the appellant-accsued then appellant-
accused and prosecutrix have left to Maihar and thereafter to Bhopal. They
were residing at Bhopal and prosecturix did not raise any objection but the
police official caught the father of appellant-accused so prosecutrix and
appellant-accused returned home. Thereafter, prosecutrix was recovered and
appellant-accused was arrested. So, it may be a matter of consent. Appellant-
accused remained in jail during trial from 01.08.2014 to 03.09.2014 and is in
jail since 27.05.2016. So, he has served almost half of sentence out of 10
years. There are material contradictions and omissions in the evidence of
witnesses. This appeal is of the year 2016. It is the time of COVID-19,
therefore, final hearing of this appeal will take time. Therefore, the application
filed on behalf of the appellant may be allowed and execution of the period of
jail sentence may be suspended and he may be released on bail.
Learned Panel Lawyer has opposed the application and prayed for its
rejection.
Heard arguments advanced by learned counsel for both the parties and
perused the record. It is evident that the age of prosecutrix is disputed. At the
time of incident, she was sleeping in her house. She herself opened the door
of her house and thereafter, herself closed the door of house from outside
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and reached to the appellant-accused. So, considering the aforesaid
circumstances of the case and also the facts that appellant-accused remained
in jail during trial from 01.08.2014 to 03.09.2014 and is in jail since
27.05.2016, so he has served almost half of sentence out of 10 years, this
appeal is of year 2016, it is the time of COVID-19, therefore, 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-Chhatrapal Bais 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 trial court on 26.08.2021 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.
I n view of the outbreak of 'Corona Virus disease (COVID-19)' the
applicant 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
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 Virus
disease', necessary steps will be taken by the concerned authority by placing
him in appropriate quarantine facility.
4 CRA-1499-2016
List this matter for final hearing in due course, as per listing policy.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
Pallavi
PALLAVI SINHA
2021.06.11 17:27:17 +05'30'
