Madhya Pradesh High Court
Dharmendra @ Motu Gond vs The State Of Madhya Pradesh on 10 June, 2021
Author: Rajendra Kumar Srivastava
1 CRA-570-2018
The High Court Of Madhya Pradesh
CRA-570-2018
(DHARMENDRA @ MOTU GOND Vs THE STATE OF MADHYA PRADESH)
23
Jabalpur, Dated : 10-06-2021
Heard through Video Conferencing.
Shri Abu Hamza, learned counsel for the appellant.
Shri Vinod Mishra, learned P.L. for the respondent/State.
Record of the Court below is available.
Heard on the question of admission.
Appeal is admitted for final hearing.
Heard on I.A. No.6609/2019, an application for suspension of
sentence and grant of bail to the appellant-Dharmendra @ Motu Gond.
The appeal has been preferred under Section 374(2) of the
Cr.P.C.,1973 b y the appellant/accused against judgment dated
30.08.2017 passed by learned Special Judge (POSCO Act) 2012,
District Damoh (MP) in Special Session Case No.03/2017, by which the
appellant has been convicted for offence under Sections 363 of IPC and
has been sentenced to undergo R.I. for 2 years with fine of Rs.500/- and
Section 366 of IPC and has been sentenced to undergo R.I. for 3 years
with fine of Rs. 1000/- and Section 6 of POSCO Act and has been
sentenced to undergo R.I. for 10 years with fine of Rs. 1000/-. Default
stipulations have also been imposed by the trial Court.
Prosecution case, in short, is that on 01.09.2015, prosecutrix (PW-
1), aged about 17 years, was missing. She was searched but she was not
found. Thereafter, her father lodged the report. Thereafter, on
03.03.2016, prosecutrix was recovered. It is found that the
appellant/accused kidnapped her and committed intercourse with her.
Learned counsel for the appellant/accused submits that learned
trial Court committed grave error to convict and sentence the
Signature Not Verified
SAN
Digitally signed by LALIT SINGH RANA
Date: 2021.06.11 17:15:52 IST
2 CRA-570-2018
appellant/accused. Prosecution totally failed to prove that at the time of
incident, prosecutrix was below 18 years. Prosecutrix and
appellant/accused belong to ST community. Prosecutrix and
appellant/accused love each other. So they ran away and solemnized
marriage with each other. Therefore, no case is made out against the
appellant/accused.
PW-2 is a father of prosecutrix. He did not disclose the date of
birth of prosecutrix (PW-1). He also admitted this fact that at the time of
admission, he disclosed the estimated date of birth of prosecutrix. PW-3
is a mother of prosecutrix, she also did not disclose the date of birth of
prosecutrix. Ram Singh (PW-4) is a Principal of Primary School,
Baksari. He deposed before the trial Court that the date of birth of
prosecutrix is 06.07.1998. According to this, date of birth of prosecutrix
was 17 years, one month and 25 days, but Ram Singh (PW-4) admitted
this fact that at the time of admission, he was not posted at that school, so
he did not know what is the source of date of birth of prosecutrix.
Therefore, it appears from the evidence that learned trial Court held that
the age of prosecutrix is on estimation. So it is not proved that at the time
of incident prosecutrix was below 18 years. Prosecutrix (PW-1) deposed
before the trial Court that she had gone with appellant/accused at Agra.
Appellant/accused kept her as his wife. She told to the police officials
that she wants to reside with the appellant/accused and she did not want
any proceeding against the appellant/accused. So it appears that
prosecutrix is a consenting party in this case. There is material
contradictions and omissions in the evidence of witnesses.
Appellant/accused is in custody since 24.12.2016. So he has served
almost half sentence. This appeal is of the year 2018. There are fair
chances to succeed in the appeal. Final hearing of this appeal will take
Signature Not Verified
SAN
time. Therefore, the application filed on behalf of the appellant may be
Digitally signed by LALIT SINGH RANA
Date: 2021.06.11 17:15:52 IST
3 CRA-570-2018
allowed and the period of his remaining jail sentence may be suspended
further and he may be released on bail.
Learned Govt. Advocate for the respondent/State has opposed the
application.
Considering the argument of both the parties and perused the
record, it appears that the age of prosecutrix is disputed. At the time of
admission, the father of prosecutrix disclosed the estimated date of birth
of prosecutrix to concerning teacher. So, estimated date of birth is
mentioned in the admission registered. Prosecutrix resided with the
appellant/accused for about 6 months. She did not raise any objection.
When she was recovered then she disclosed that she wants to reside with
appellant/accused. Appellant/accused is in custody since 24.12.2016.
Appellant/accused has served almost half sentence. This appeal is of the
year 2018. It is time of COVID-19 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.6609/2019 is allowed subject to deposit of
fine amount, if not already deposited. The custodial sentence awarded to
the appellant shall remain suspended during the pendency of this appeal.
Appellant-Dharmendra @ Motu Gond 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 the trial Court. The appellant shall appear and mark
his presence before the trial Court on 16.08.2021 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.
Signature Not Verified
In view of the outbreak of 'Corona Virus disease (COVID-19)' the
SAN
Digitally signed by LALIT SINGH RANA
Date: 2021.06.11 17:15:52 IST
4 CRA-570-2018
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.
List the matter for final hearing in due course.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
L.R.
Signature Not Verified
SAN
Digitally signed by LALIT SINGH RANA
Date: 2021.06.11 17:15:52 IST
