Madhya Pradesh High Court
Gorelal vs The State Of Madhya Pradesh on 28 June, 2021
Author: Rajendra Kumar Srivastava
1 CRA-858-2018
The High Court Of Madhya Pradesh
CRA-858-2018
(GORELAL Vs THE STATE OF MADHYA PRADESH)
10
Jabalpur, Dated : 28-06-2021
Heard through Video Conferencing.
Shri Mithilesh P.D. Tripathi, learned counsel for the appellant.
Ms. Seema jaiswal, learned Panel Lawyer for the respondent-State.
Record of the court below is available on record.
Heard on the question of admission.
Appeal is admitted for hearing.
Also heard on I.A.No 2198/2020, 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 the Court of learned Additional Sessions Judge/Special Judge,
SC/ST (Prevention of Atrocities) Act, Burhanpur (MP), in Special S.T. No.02/2017
vide its judgment dated 05/10/2017 convicting the appellant/accused under Sections
363 of IPC, under Section 366(A), 376(2)(Jha), 376(2)(Dh) of IPC and under
Section 5(Tha)r/w 6 of POCSO Act and sentenced him to undergo RI for 5 years with
fine of Rs.5,000/-, RI for 5 with fine of Rs. 5,000/- ,RI fore 10 years with fine of Rs.
10,000/-, RI for 10 years with fine of Rs. 10,000/- and RI for 10 years with fine of
Rs. 10,000/- respectively with default stipulation.
As per prosecution case, on 08/10/2016 prosecutrix aged about (PW-2) was
missing from her house. She was searched but not found . FIR was lodged. On
23.10.2016 prosecutrix was recovered. It is alleged by her that appellant/accused
kept her in his house and committed intercourse with her.
Learned counsel for the accused/appellant submits that the appellant/accused
has been falsely implicated in this case. Learned trial Court committed grave error
in convicting and sentencing the appellant/accused. Learned trial Court did not
appreciate the evidence in prospective way. It is not proved that at the time of
incident, prosecutrix was below 18 years. Prem Singh Jamra (PW-7) is an Assistant
Teacher. He deposed before the trial Court that the date of birth of prosecutrix is
25.07.2000 but he admitted this fact that he did not know the date of birth of
prosecutrix. (PW-1) is mother of prosecutrix but she did not disclose the date of
Signature Not Verified
SAN birth of prosecutrix. (PW-2) is father of prosecutrix but he also did not disclose the
Digitally signed by ROSHNI SINGH PATEL
Date: 2021.06.29 17:17:33 IST
2 CRA-858-2018
date of birth of prosecutrix. So, source of date of birth of prosecutrix is not produce
before the trial Court . Dr. Vandana Chowksey (PW-11) examined the prosecutrix
and she deposed before trial Court that secondary sexual character of prosecutrix
was found well developed. So, the age of prosecutrix may be above 18 years. Apart
from this, prosecutrix is consenting party in this matter. Prosecutrix (PW-2)
admitted this fact that the appellant/accused kept her in his house. Appellant/accused
did not give any threat to her. All the family members of appellant were also
presence in that house due to this they could not establish relation as husband and
wife. Apart from this, there is material contradiction and omissions in the evidence
of prosecutrix witnesses. Learned trial Court already suspended execution of jail
sentence of the appellant and granted bail. There is every possibility to succeed in
this appeal. It is the time of Covid-19 pandemic due to which final hearing of this
appeal will take time. This appeal is year 2018. Appellant has already been served 6
years 6 months of jail sentence out of 10 years. Under these circumstances, if the
execution of jail 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
of present accused/ appellant.
Learned Panel Lawyer has opposed the application and prayed for its
rejection.
Considering the arguments advanced by learned counsel for the parties and the
fact that the age of prosecutrix is disputed, prosecutrix herself admitted this fact that
appellant accused could not establish relation due to presence of other family
members of appellant. he has already served the 6 years and 6 months of jail sentence
out of 10 years, this appeal is year 2018 learned trial Court has already been
suspended execution of jail sentence of the appellant, it is the time of Covid-19
pandemic due to which hearing of the appeal will take time for its final disposal,
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-Gorelal 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 amount of Rs. 50,000/- to the satisfaction of the trial Court for
his appearance before the trial court on 26th August, 2021 and thereafter on all
Signature Not Verified
SAN other such subsequent dates, as may be fixed by the trial court in this regard.
Digitally signed by ROSHNI SINGH PATEL
Date: 2021.06.29 17:17:33 IST
3 CRA-858-2018
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.
In 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.
List this matter for final hearing in due course, as per listing policy.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
R
Signature Not Verified
SAN
Digitally signed by ROSHNI SINGH PATEL
Date: 2021.06.29 17:17:33 IST
