Ramesh Yadav vs The State Of Madhya Pradesh
2021 Latest Caselaw 2233 MP

                                                                        1                             CRA-1065-2018
                                            The High Court Of Madhya Pradesh
                                                       CRA-1065-2018
                                                      (RAMESH YADAV Vs THE STATE OF MADHYA PRADESH)

                                    15
                                    Jabalpur, Dated : 10-06-2021
                                          Heard through Video Conferencing.
                                          Shri Anurag Sahu, 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 hearing.

Heard on I.A.No.13854/2020, 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 Special Judge, POCSO Act, 2012, Panna, (MP), in SPL Session Trial No.200278/2016 vide i t s judgment dated 12.01.2018 convicting the appellant/accused under Section 450 of IPC and sentenced him to undergo R.I. for 5 years with a fine of Rs. 5,000/-, under Section 376(1) of IPC and sentenced him to undergo R.I. for 10 years with a fine of Rs. 10,000/-, under Setion 506(II) of IPC and sentenced him to undergo R.I. for 1 year with a fine of Rs. 3,000/- and under Section 6 of

POCSO Act, 2012 and sentenced him to undergo R.I. for 10 years with a fine of Rs. 10,000/- with default stipulation, as mentioned in the impugned judgment.

As per prosecution case, prosecutrix PW-1 lodged the report on dated 01.03.2016 by alleging that on dated 25.11.2015, she was alone in her house. At that time, present appellant-accused entered in her house. Appellant- accused proposed her for marriage. Thereafter, he committed intercourse with her. Prosecutrix PW-1 became pregnant then appellant-accused refused to marry with her then prosecutrix lodged a report.

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 Signature Not Verified SAN has committed grave error to convict and sentence to the appellant-accused.

Digitally signed by PALLAVI SINHA Date: 2021.06.16 15:53:51 IST 2 CRA-1065-2018 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 incident, she was below 18 years. Although, Principal Ramsanjivan Kondar PW-4 deposed before the Trial Court that the date of birth of prosecutrix is 08.06.1999, which is mentioned in the Admission Register of that school but he admitted this fact that at the time of admission of prosecutrix, he was not

posted at that school. He does not know that, who has entered the date of birth of prosecutrix and also does not know the source of information of her date of birth? PW-3 is father of prosecutrix, who deposed before the Trial Court that prosecutrix is aged about 19 years. Mother of the prosecutrix is PW-2, who deposed that prosecutrix is 18 years old and prosecutrix PW-1 herself stated that her father mentioned her dated of birth in the School Register by minimizing 2-3 years from the original one. So, it is not proved that at the time of incident prosecutrix PW-1 was below 18 years. Her secondary sexual character is found well developed. So, at the time of incident, prosecutrix might be above 18 years. Prosecutrix PW-1 deposed before the Trial Court that one unknown person committed intercourse with her. Prosecutrix was declared hostile by the prosecution. Her mother PW-2, her father PW-3 also declared hostile by the prosecution. Although DNA report is positive but it is a matter of consent. There are material contradictions and omissions in the evidence of witnesses. Appellant-accused remained in jail during trial from 15.03.2016 to 12.01.2017 and is in jail since 12.01.2018. So, he has served almost four years and four month of his awarded jail sentence. This appeal is of the year 2018. 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.

Having considered the arguments advanced by learned counsel for the Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.06.16 15:53:51 IST 3 CRA-1065-2018 parties, and the facts that age of prosecutrix is disputed, prosecutrix PW-1 herself deposed before the Trial Court that one unknown person has committed intercourse with her, she, her mother PW-2 and her father PW-3 have been declared hostile by the prosecution, appellant-accused remained in jail during trial from 15.03.2016 to 12.01.2017 and is in jail since 12.01.2018, so he has served almost four years and four month of his awarded jail sentence, 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- Ramesh Yadav 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 Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.06.16 15:53:51 IST 4 CRA-1065-2018 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

Pallavi

Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.06.16 15:53:51 IST