Sameer Sheikh @ Sawar vs The State Of Madhya Pradesh
2021 Latest Caselaw 844 MP

                                   1                              CRA-4780-2020
        The High Court Of Madhya Pradesh
                   CRA-4780-2020
              (SAMEER SHEIKH @ SAWAR Vs THE STATE OF MADHYA PRADESH)

6
Jabalpur, Dated : 18-03-2021
      Shri Neeraj Jain. learned counsel for the appellant.
      Shri Brijendra Singh Kushwaha, learned Panel Lawyer for the
respondent-State.

Record of the trial Court has been received.

Heard on the question of admission.

Appeal is admitted for final hearing.

Also heard on I.A.No.10042/2020, an application filed by the appellant/accused under section 389 (1) of Cr.P.C for suspension of sentence and grant bail to him.

The appeal has been preferred by the appellant against judgment dated 03.09.2020 passed by learned 23rd Additional Sessions Judge/Special Session Judge (POSCO Act), Bhopal, District-Bhopal in Session Trial No.757/2018.

Appellant stands convicted for an offence punishable under Section

7/8 of POCSO Act and has been sentenced to undergo RI for 3 years with fine of Rs.1,000/- with default stipulation.

As per prosecution case, on 26.07.2018, prosecurtix lodged the FIR against the present applicant stating therein that at the time of incident, she was student of class-IX at Model School in T.T. Nagar, Bhopal. Prosecutrix used to school bus for transportation. Prior to the said incident, on 22.07.2018, at about 11:30 am, near D.I.G. Banglow, present appellant took the prosecutrix at Kerwa Dam where he committed intercourse with her. Thereafter, she narrated the whole incident to her mother then her mother advised her that when present appellant would take her then they chased and caught him. On the next day, at about 02:15 pm, when appellant took her by his motorcycle and tried to outrage her modesty, at that time, her parents 2 CRA-4780-2020 came there and called the police through dialed 100.

Learned counsel for the appellant/accused submits that learned trial Court has suspended the execution of jail sentence of appellant upto 01.10.2020 and after that this Court was extended the suspension period of the appellant for the period of two moths. Due to non-appearance of appellant, trial Court was issued a non-bailable warrant of arrest of him, in

compliance of said warrant, on 12.03.2021, appellant himself surrender before the trial Court and trial Court sent him to jail and since then he is in jail. Present appellant has been falsely implicated in this case. There is no reliable evidence available on record against him for the alleged offence. Appellant has not committed any offence. There is no criminal antecedent against the present appellant. This appeal is of year 2020 and it will take time to conclude. Appellant/Accused has been acquitted by the trial Court on the same evidence under Section 366-A, 376(2) of the IPC and Section 3/4 of POCSO Act. Prosecutrix stated in 164 of Cr.P.C. (Ex.D/1) that when she was taking tea along with present appellant/accused at that time, her mother reached there and called the police, so prima facie, no case is made out against the present appellant for the alleged offences. There are material contradictions and omissions in the statement of the prosecution witnesses. There is fair chance to succeed in the appeal. There is no likelihood of his absconding. Under the circumstances, if the sentence of the appellant is not suspended, their right to file appeal will be futile. Hence, prayer is made for suspension of his jail sentence and grant of bail.

Learned Panel Lawyer has opposed the application and prayed for its rejection.

Having considered the arguments advanced by learned counsel for the parties, evidence particularly statement of prosecutrix Ex.D/1 and this fact that learned trial Court has already suspended the execution of jail sentence of the appellant upto 01.10.2020 and after that this Court was extended the suspension period of the appellant, on 12.03.2021 appellant himself surrender 3 CRA-4780-2020 before the trial Court and since then he is in jail, this appeal is of year 2020, final hearing of this appeal will take time but without commenting anything on the merits of the case, the said I.A.No.10042/2020 is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant/accused-Sameer Sheikh @ Sawar 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 each in the like amount to the satisfaction of the trial Court for his appearance before the trial court on 15.06.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard.

I n view of the outbreak of 'Corona Virus disease (COVID-19)' the 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

sp Digitally signed by SAVITRI PATEL Date: 2021.03.22 17:48:06 +05'30'