Madhya Pradesh High Court
Sawan vs The State Of Madhya Pradesh on 26 June, 2021
Author: Rajendra Kumar Srivastava
1 CRA-3794-2018
The High Court Of Madhya Pradesh
CRA-3794-2018
(SAWAN Vs THE STATE OF MADHYA PRADESH)
13
Jabalpur, Dated : 26-06-2021
Heard through Video Conferencing.
Shri Arvind Kumar Pathak, Advocate for the appellant.
Shri R.D. Singh, P.L. for the respondent-State.
Record of the trial Court has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Heard on I.A. No.707/2021 an application (fourth application) for
suspension of execution of sentence awarded to the appellant and grant of
bail. Earlier applications have been dismissed as withdrawn as under:-
I.A. No. 7914/2018--------------on 04.12.2018
I.A. No. 14075/2019-------------on 21.08.2019
I.A. No. 532/2020----------------on 07.02.2020
Vide judgment dated 28.04.2018 in S.C.200114/2016 passed by
learned 1st ASJ Khandwa, Distt.-Khandwa, M.P., the appellant has been
convicted for the offence punishable under Section 363 of IPC and has
been sentenced to undergo R.I. for 2 years with a fine of Rs. 1,000/-,
Section 366 of IPC and sentenced to undergo R.I. for 2 years with a fine
of Rs. 1,000/- and Section 4 of POCSO Act and sentenced to undergo
R.I. for 7 years with a fine of Rs. 8,000/- with default stipulation in each.
As per prosecution case, on dated 10.10.2016, prosecutrix PW-1
was missing from her house. She was searched but not found. FIR was
lodged. Thereafter, prosecutrix was recovered on dated 12.10.2016. She
stated that appellant-accused kidnapped her and committed intercourse
with her.
Learned counsel for the appellant submits that learned Trial Court
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.06.26 17:19:57 IST
2 CRA-3794-2018
has committed grave error to convict and sentence to the appellant-
accused. Learned Trial Court did not appreciate the evidence in
perspective way. Learned Trial Court held that at the time of incident
prosecutrix was below 18 years but mother of prosecutrix PW-2 did not
disclose the date of birth of prosecutrix. She stated before the Trial Court
that she disclosed the age of prosecutrix on estimated ground. PW-7 is
the father of prosecutrix. He also did not disclose the date of birth of the
prosecutrix. Although, PW-4 is Assistant Teacher of the School where
prosecutrix studied but he admitted this fact that he did not know what is
source of date of birth of prosecutrix. So, it appears from the record that
at the time of incident, age of prosecutrix might be above 18 years.
Prosecutrix PW-1 admitted this fact that she likes appellant-accused.
Both met secretly. Prosecutrix PW-1 is wholly consenting party in this
case. Both parties belongs to the Scheduled Tribe in which there is a
custom to marry individually without permission of parents. Apart from
this, there are material contradiction and omission in the statement of the
prosecution witnesses. Appellant-accused is in custody since 13.10.2016 so
he has served almost 5 years of his jail sentence out of 7 years. He has served
substantial jail sentence. This appeal is of year 2018. It is the time of COVID-
19 due to which final hearing of this appeal will take time. There is every
possibility to succeed in this appeal. There is no likelihood of his absconding
and tampering with the evidence. Under the circumstances, if the execution of
sentence of the appellant is not suspended, his right to file appeal will be
futile. Hence, prayer is made for suspension of jail sentence and grant of bail
to the present appellant-accused.
On the other hand, learned Panel Lawyer for the respondent-State
opposes the submission of appellant's counsel and prays for rejection of
application.
Signature Not Verified
Heard and perused the record.
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.06.26 17:19:57 IST
3 CRA-3794-2018
Having considered the arguments advanced by learned counsel for
the parties and evidence of the case it appears that the age of prosecutrix
is disputed, she herself admitted this fact that she liked appellant-accused
and both met secretly, appellant-accused is in custody since 13.10.2016,
so he has served substantial jail sentence, this appeal is of year 2018, it
is the time of pandemic COVID-19 due to which final hearing of this
appeal will take time but without commenting anything on the merits 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-Sawan 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
learned trial court on 06.09.2021 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.
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.
Signature Not Verified
3 . If it is found that the appellant is suffering from 'Corona Virus
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.06.26 17:19:57 IST
4 CRA-3794-2018
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: 2021.06.26 17:19:57 IST
