Galiya @ Rakesh @ Hukum vs The State Of Madhya Pradesh
2021 Latest Caselaw 2419 MP

 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

                       Criminal Appeal No.5871/2017
                 (Galiya @ Rakesh @ Hukum Vs. State of M. P.)
                                     -1-

Indore, dated 16/06/2021

         Heard through Video Conferencing.

         Shri Ayush Jain, learned counsel for the appellant.

         Shri Romil Malpani, learned Panel Lawyer for the respondent /

State.

Heard on I.A.No.13255/2021, which is third application under

Section 389(1) of Cr.P.C. for suspension of sentence and for grant of

bail on behalf of the appellant Galiya @ Rakesh @ Hukum.

The appellant has been convicted under section 306 of the IPC

and sentenced to under go 10 years RI with fine of Rs.1,000/-, with

default stipulation, vide judgment dated 04/12/2017 passed in

Sessions Trial No.400115/2016 by Sessions Judge, Shajapur. As per

"Jail Confinement Certificate" filed along with I.A.No.13257/2021, the

appellant has so far under gone 04 years, 06 months and 13 days,

therefore, as on date the appellant as stated have under gone five

years.

Learned counsel for the appellant has fairly submits that the first

application for suspension of sentence was dismissed on 07/08/2018

and second application was dismissed on 19/06/2019. Learned

counsel points out that on 28/01/2019, this Court was though pleased

to order listing of the case under the category "High Court Expedited

Cases" but thereafter, the case could not be heard. It is submitted that

thereafter, on 12/02/2020 the application for early hearing was HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Criminal Appeal No.5871/2017 (Galiya @ Rakesh @ Hukum Vs. State of M. P.)

dismissed on the premise that it is an admitted appeal.

Learned counsel for the appellant primarily pressed the instant

applicant on the ground of completion of 05 years of jail custody out of

total 10 years with submission that the appellant has no criminal

record. The appellant conviction is based on the evidence of PW-1 and

PW-2 i.e. husband and son of the deceased. Primarily, while going

through the deposition of both the witnesses, learned counsel points

out that on the one hand PW-1 deposed that his son informed him

about the alleged rape committed on the deceased while the appellant

had gone inside, whereas PW-2 the son nowhere ever stated about

the alleged act of rape in the entire deposition before the Court. That

apart the postmortem report does not state about the alleged rape.

Hence, apparent contradictions in paragraph No.02 of the deposition

of PW-1 and PW-2 neither have been appreciated by the Court below

nor at the time the first application for suspension of sentence was

rejected on merits.

That apart there is no evidence on record to establish the

proximity of the appellant with the act of commission of suicide to

constitute the offence of abetment as defined under Section 107 of the

IPC. There is no whisper about the alleged act of abetment in any

manner in the evidence on record. Besides, he is the sole bread

earner and due to his jail incarceration, the family is in penury. It is

submitted that learned Court below has not properly appreciated the HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Criminal Appeal No.5871/2017 (Galiya @ Rakesh @ Hukum Vs. State of M. P.)

evidence, and committed error. During COVID-19 pandemic the

regular criminal appeals are not being taken up for consideration on

merits. Therefore, prays for suspension of sentence and enlargement

of appellant on bail, on such terms and conditions this Court deems fit

and proper.

Per contra, learned Panel Lawyer opposes the bail application

with submission primarily that once an application has been dismissed

on merits on 07/08/2018, there is no change circumstances warranting

to consider this instant application. However, learned counsel does not

dispute that on 28/01/2019, the Division Bench had ordered for listing

of the instant case under "High Court Expedited Cases" category and

the order dated 12/02/2020 on which date the application for early

hearing i.e. I.A.No.10281/2019 was dismissed on the premise that

appeal is admitted for hearing.

Learned Panel Lawyer also does not dispute that the appellant

has under gone half of the sentence awarded so far. However, on

merits he submits that the contention advanced shall be considered at

the time of final hearing of the case and therefore, even if the

deposition of PW-1 and PW-2 are contradictory to each other and the

evidence of abetment is wanting same may not be considered at this

stage.

Upon hearing learned counsel for the parties, without touching

upon the merits of the case, prima-facie it appears that the appellant HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Criminal Appeal No.5871/2017 (Galiya @ Rakesh @ Hukum Vs. State of M. P.)

has undergone half of the sentence out of total sentence awarded and

this case though was ordered to be kept under the "High Court

Expedited Cases" category by the Division Bench but at later stage his

application was dismissed for early hearing. During COVID-19

pandemic the regular criminal appeals are not being taken up for

consideration on merits. That apart prima-facie the submissions

advanced by learned counsel for the appellant appear to have

substantial force. Regard being had to the evidence on record and the

conviction awarded.

Taking into consideration the facts and circumstances of the

case and the fact that appeal will take time, the application is allowed

and the jail sentence of the appellant shall remain suspended and he

be released on bail on his furnishing personal bond in the sum of

Rs.3,00,000/- (Rs. Three Lacs Only) with separate solvent surety in

the like amount to the satisfaction of the trial Court subject to deposit

of the fine amount. The appellant is directed to appear before the

Registry of this Court on 10/08/2021 and on other dates as may be

fixed in this behalf with following further conditions:-

(i) the appellant shall abide by the terms and conditions of various circulars and orders issued by the Government of India and the State Government as well as the local administration from to time in the matter of maintaining social distancing, physical distancing, hygiene, etc., to avoid proliferation of Novel Corona virus (COVID-19);

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE

Criminal Appeal No.5871/2017 (Galiya @ Rakesh @ Hukum Vs. State of M. P.)

(ii) the concerned jail authorities are directed that before releasing the appellant, the medical examination of the appellant be conducted through the jail doctor and if it is prima-facie found that he is having any symptoms of COVID-19, then the consequential follow up action or any further test required be undertaken immediately. If not, the appellant shall be released on bail in terms of the conditions imposed in this order; In the event of violation of any of the terms and conditions of the

order by the appellant, the prosecution is at liberty to seek cancellation

of the bail granted to the appellant.

Learned Public Prosecutor is directed to send an e-copy of this

order to the Court concerned for necessary compliance.

Accordingly, the IA stands disposed of.

E-certified copy as per rules.

(ROHIT ARYA) JUDGE Tej

Digitally signed by TEJPRAKASH VYAS Date: 2021.06.16 17:13:48 -07'00'