Madhya Pradesh High Court
Amit Rai vs The State Of Madhya Pradesh on 5 May, 2021
Author: Rajendra Kumar Srivastava
1 CRA-1853-2021
The High Court Of Madhya Pradesh
CRA-1853-2021
(AMIT RAI Vs THE STATE OF MADHYA PRADESH)
1
Jabalpur, Dated : 05-05-2021
Heard through Video Conferencing.
Shri Manish Datt-Senior Counsel with Shri Manish Kumar Soni,
Advocate for the appellant.
Ms. Nalini Gurang, 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.
Als o heard on I.A. No.4484/2021 an application for suspension of
execution of jail sentence awarded to the appellant and grant of bail.
Vide judgment dated 12.03.2021 in Session Trial No.150/2017 passed
by learned 7th Addl. Sessions Judge/Special Judge OAW, offences, Katni,
M.P. the appellant has been convicted for the offence punishable under
Section 376 of IPC and has been sentenced to undergo R.I. for 10 years with
fine of Rs. 10,000/- with default stipulation.
As per prosecution case, on dated 17.04.2017, prosecutrix aged 23
years lodged a written report before In-charge Police Station-Kuthla,
Distt.Katni stating therein that she and appellant-accused were familiar with
each other since the year 2015. The matter of marriage between them was
going on in their families. Due to this, they have established physical
relationship with each other. On dated 02.04.2017, appellant-accused came to
her house. At that time, no other family member was present in her house.
Appellant-accused committed intercourse with her without her consent. She
told him that she will inform the incident to her mother on which appellant-
accused threatened her to discredit her by making her pornographic videos.
Thereafter, she disclosed all the incident to her family members and the report
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was lodged. During investigation, it is found that appellant-accused
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committed intercourse with the prosecutrix on the false pretext of marriage.
Learned counsel for the appellant submits that learned Trial Court has
committed grave error to convict and sentence to the appellant-accused.
Learned Trial Court did not appreciate the evidence in perspective way. It is
admitted fact that prosecutrix (PW-1) was 23 years at the time of incident.
She has admitted this fact that she has a galla (grain) shop and she and her
mother used to sale grain in their shop. She also admitted this fact that at that
time, she was studying in B.A. Final year. So, prosecutrix was a grown-up
(major) lady. She also admitted this fact that no any ceremony regarding her
marriage with appellant-accused has been conducted between year 2015-2017
and it is true that the marriage will not be considered until the engagement is
over. She wanted to continue her studies. So, at that time, she wanted some
time for marriage from which it appears that at the time of incident,
prosecutrix herself was not ready to solemnize marriage. Mother of
prosecutrix Bela Bai (PW-2) and brother Pushpendra Rai (PW-3) also stated
the same fact. Bela Bai (PW-2) also admitted this fact that she told
prosecutrix not to call the appellant-accused in her house and at that time
prosecutrix was not ready to solemnize marriage because she wanted to study
further. She informed to the appellant-accused that prosecutrix was not ready
to solemnize marriage at that time of incident. So, prosecutrix herself was not
ready to marry with appellant-accused. Appellant's father has fixed his
marriage with another girl. Then prosecutrix afterthought lodged the report
against the appellant-accused. There are material contradiction and omission
in the version of the prosecution witnesses. So, it appears that the appellant-
accused did not promise to marry with prosecutrix. Prosecutrix and
appellant-accused were adult at the time of incident. Prosecutrix did not
establish physical relationship on the false pretext of marriage because she
herself was not ready to solemnize marriage. Both parties felt in love with
each other deeply, so they have established physical relationship with each
other voluntarily. So, no case is made out under Section 376 of IPC against
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the appellant-accused. It is admitted fact that learned Trial Court has already
acquitted the appellant-accused for the offence punishable under Section 506
(1) of IPC. So, it cannot be said that appellant-accused threatened to the
prosecutrix or pressurized her to establish physical relationship with him.
During the trial, appellant-accused was on anticipatory bail. Appellant-
accused is in jail since 12.03.2021. This appeal is of year 2021 and trial will
take time to conclude. There is fair chance to succeed in the 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.
O n the other hand, learned Panel Lawyer for the respondent-State
opposes the submission of appellant's counsel and prays for rejection of
application.
Heard and perused the record.
Having considered the arguments advanced by learned counsel for the
parties, evidence of the case and the facts that at the time of incident
prosecutrix was aged 23 years, appellant-accused is 30 years old, prosecutrix
was well-educated lady at the time of incident, she used to sale grain with her
mother in their galla shop, she herself was not ready to solemnize marriage at
that time, she wanted to study further, appellant-accused committed
intercourse with her at his house, which is situated in a basti in the year 2016
so, it may be a matter of consent of both parties, as both were adult at the
time of incident, appellant-accused is in custody since 12.03.2021, this appeal
is of year 2021, 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-Amit Rai shall
remain suspended during the pendency of this appeal and he be released on
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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 27.07.2021 and thereafter on all other such subsequent dates, as may be
fixed by the trial court in this regard.
I n 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.
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
Pallavi
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