Awdhesh Dahiya vs The State Of Madhya Pradesh
2021 Latest Caselaw 1787 MP

                                  1                                CRA-1548-2021
        The High Court Of Madhya Pradesh
                   CRA-1548-2021
                 (AWDHESH DAHIYA Vs THE STATE OF MADHYA PRADESH)

3
Jabalpur, Dated : 05-05-2021
       Heard through Video Conferencing.
       Shri Akshay Namdeo, learned counsel for the appellant.
       Ms. Nalini Gurang, 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.3769/2021, which is first 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 VII Additional Sessions Judge Katni, District-Katni (MP), in S.T. No.100066/2015 vide its judgment dated 25.02.2021, convicting the appellant/accused for offence punishable under Section 452 of the IPC and sentenced him to undergo R.I. for 01 year with fine of Rs.1000/- with default stipulation and Section 376(2)(t) of the IPC

and sentenced him to undergo R.I. for 10 years with fine of Rs.5,000/- with

default stipulation.

A s per prosecution case, on 11.02.2015, prosecutrix aged 27 years, lodged the report against the present appellant mentioning therein that on 22.11.2014, present appellant came to her house, at that time her husband was not present there. She was carrying pregnancy of 8 months then present appellant committed intercourse with her forcefully and also threatened to kill her. After sometime, her husband reached there then present appellant ran away from there. Prosecutrix narrated all the incident to her husband. Thereafter, her husband told the said incident to the brother of appellant then the brother of appellant told to him that he will scold the appellant. But they did not lodge any report against the present appellant due to scandalous condition. Thereafter, appellant used to come to her house and compelled her 2 CRA-1548-2021 to having intercourse with him. On 08.02.2015, appellant again came to the house of prosecutrix and told her to come with him. Thereafter, she disclosed the said incident to her husband and lodged the report.

Learned counsel for the accused/appellant submits that learned trial C o u r t committed grave error in convicting and sentencing the accused/appellant. Learned trial Court did not appreciate the evidence of

defence witness and conduct of the prosecutrix (PW-4) in prospective way. Prosecutrix (PW-4) is mother of four children and it is evident from the evidence of prosecutrix (PW-4), her husband (PW-5), mother of prosecutrix (PW-7) and her brother (PW-8) that prosecutrix disclosed the incident on 22.11.2014 to all the relatives but she did not lodge any report against the present appellant in this regard. She lodged the report on 11.02.2015, so there is an inordinate delay in lodging the FIR, due to this, the evidence of prosecutrix and other witnesses, is not wholly reliable. Apart from this, prosecutrix (PW-4) admitted this fact in her cross-examination that the marriage of appellant has been fixed in the year 2015 and her husband (PW-5) also admitted this fact that Tilak programme of appellant was held on 9 February 2015 and the husband of prosecutrix was also participated in the said programme. So, it appears that, if appellant committed any offence with the prosecutrix on 22.11.2014 and again came to the house of prosecutrix on 08.02.2015 for commit the same offence then presence of her husband at the Tilk programme of the present appellant, is not probable. So, the evidence of prosecutrix (PW-4) is not wholly reliable. It is admitted fact that no injury was found on the body of the prosecutrix. After the incident, her husband (PW-5) reached at the spot but her husband did not disclose any fact that he saw the prosecutrix in injured condition. Mother of Prosecutrix (PW-7) and her brother (PW-8) admitted this fact that the prosecutrix and her husband tress passed the government land and started constructing work of his house then present appellant and other neighbours objected to do so, due to this, prosecutrix and her husband could not succeed to complete the same and 3 CRA-1548-2021 after that they are living at rented house. Due to that, since then enmity is going on between them and prosecutrix lodged the said false case against him. Prosecutrix is habitual to lodge such type of false case. During the trial, appellant was on bail. At present, appellant is in jail since 25.02.2021. This appeal is of year 2021 and it will take sufficient time in its conclusion. There are material contradictions and omissions in the statement of the witnesses. There is fair chance to succeed in the appeal. There is no likelihood of his absconding. 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 counsel for the respondent/State has opposed the application for suspension of sentence and grant of bail to the appellant submitting that the impugned judgment of conviction and order of sentence is based on proper appreciation of oral as well as documentary evidence and the appellant has committed grave offence and the aforesaid offence is serious in nature. Therefore, she prays for bail should not be granted to the appellant.

Having considered the arguments advanced by learned counsel for the parties and the fact that prosecutrix is mother of four children, incident occurred on 22.11.2014 but she lodged the report on 11.02.2015, at the time of incident, her husband reached there but they did not lodge any report against the present appellant, prosecutrix disclosed the said incident on 22.11.2014 to other relatives but no FIR was lodged in this regard, FIR was lodged an inordinate delay, FSL and DNA of prosecutrix was also not conducted by the prosecution, the marriage of appellant was fixed in the year 2015 and prosecutrix mentioned that the incident dates are 22.11.2014 and 08.02.2015 but her husband participated in the Tilak ceremony of present appellant on 09.02.2015, appellant is in jail since 25.02.2021, this appeal is of year 2021 and it will take sufficient time in its conclusion due to COVID-19 pandemic but without commenting anything on the merit of the case, the said 4 CRA-1548-2021 I.A. No. 3769/2021 is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant-Awdhesh Dahiya 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 like amount 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.

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 this matter for final hearing in due course, as per listing policy. C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

sp Digitally signed by SAVITRI PATEL Date: 2021.05.08 16:06:14 +05'30'