Madhya Pradesh High Court
Devendra Yadav vs The State Of Madhya Pradesh on 31 March, 2021
Author: Rajendra Kumar Srivastava
1 CRA-1307-2021
The High Court Of Madhya Pradesh
CRA-1307-2021
(DEVENDRA YADAV Vs THE STATE OF MADHYA PRADESH)
3
Jabalpur, Dated : 31-03-2021
Ms. Savita Choudhary, Advocate for the appellant.
Shri Yogesh Kumar Chaurasiya, Panel Lawyer for the
respondent-State.
Complainant present in person with Shri Ramashankar Yadav,
Advoate.
Record of the court below is available on record.
Appeal is admitted for hearing.
Heard on I.A.No.3213/2021, 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 Session Judge
Lavkush Nagar, District Chhatarpur (MP), in S.T. No.36/2020 vide
its judgment dated 15.2.2021, convicting the appellant/accused for
offence punishable under Section 363/34 of the IPC and sentenced
him to undergo RI for 3 year with fine of Rs.2,000/-, under Section
366-A/34 of the IPC he is sentenced to undergo RI for 5 years with
fine of Rs.2,000/- and Section 376(1) of IPC and Section 3/4 of
POCSO Act, he is sentenced to undergo RI for 10 years with fine of
Rs.2,000/-,with default stipulation, on each count.
A s per prosecution case, on 26.10.2017, present
accused/appellant and co-accused kidnapped prosecutrix aged about
15 years. Thereafter, accused/appellant committed intercourse with
her.
Learned counsel for the accused/appellant submits that learned
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accused/appellant. There is no clinching evidence available on record
on which it can be said that at the time of incident prosecutrix was
below 18 years, although father of prosecutrix (PW/1) deposed
before the trial Court that at the time of incident prosecutrix was 14
years of age. He admitted in cross-examination that he is unable to
disclose the date of birth of any of his child. Thus, he was unable to
disclose the date of birth of prosecutrix. He admitted this fact that
Principal of the school wrote estimated date of birth of prosecutrix.
Prosecutrix (PW/4) admitted in her cross-examination that her sister
(PW/2) is about 22 years and she is younger to her for three years. So,
it appears that at the time of incident, prosecutrix was above 18 years,
although Rammilan Ahirwar (PW/14) produced admission register
with regard to admission of prosecutrix in which it is mentioned that
date of birth of prosecutrix is 1.7.2002. But, source of birth is not
proved by the prosecution and her father also admitted this fact that in
the school register, the date of birth is written on estimated basis. So,
it is not proved beyond reasonable doubt that at the time of incident
prosecutrix was below 18 years. Prosecutrix (PW/4) deposed before
the trial Court that she voluntarily came to the accused/appellant.
Prosecutrix and appellant love each other and did not want to reside
with their parents. During the trial, accused/appellant and prosecutrix
solemnized marriage. So, prosecutrix is the wife of accused/appellant.
During the trial accused/appellant remained in jail from 2.12.2017 to
10.1.2018 and at present he is in jail since 15.2.2021. This appeal is
of year 2021, trial will take time to conclude the same. There are
material contradictions and omissions in the statement of the
witnesses. There is fair chance to succeed in the appeal. There is no
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likelihood of his absconding and tampering with the evidence. Under
the 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 for the State submits that verification
report has been received. He has opposed the application and prayed
for its rejection.
Complainant present in person, submits that she solemnized
marriage with accused/appellant. She is residing in the house of
accused/appellant as his wife. No other male member is available her
family to maintain her.
Having considered the arguments advanced by learned counsel
for the parties and from perusal of record it appears from the
statement of witnesses that age of prosecutrix is disputed, prosecutrix
herself stated that she voluntarily came to the accused/appellant, it is
also admitted fact that accused/appellant and prosecutrix solemnized
marriage and prosecutrix is residing in the house of accused/appellant
as his wife, accused/appellant remained in jail from 2.12.2017 to
10.1.2018 and at present he is in jail since 15.2.2021, this appeal is
of year 2021, 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-Devendra
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
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the amount of Rs. 50,000/- to the satisfaction of the trial Court for his
appearance before the trial court on 23.6.2021 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.
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 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
Vi ru s 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
A.Praj.
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