Jitendra vs The State Of Madhya Pradesh
2021 Latest Caselaw 1825 MP

                                                                       1                             CRA-3918-2016
                                            The High Court Of Madhya Pradesh
                                                       CRA-3918-2016
                                                        (JITENDRA Vs THE STATE OF MADHYA PRADESH)

                                    10
                                    Jabalpur, Dated : 06-05-2021
                                          Heard through Video Conferencing.
                                          Shri Mithilesh Prasad Tripathi, Advocate for the appellant.
                                          Shri Deepak Sahu, 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.2147/2020 an application for suspension of execution of jail sentence awarded to the appellant and grant of bail.

Vide judgment dated 29.11.2016 in Session Trial No.46/2015 passed by learned 2nd Addl. Sessions Judge, Distt.Burhanpur, M.P. the appellant has been convicted for the offence punishable under Section 366 of IPC and has been sentenced to undergo R.I. for 3 years with fine of Rs. 3,000/- and under Section 376(2) of IPC and has been sentenced to undergo R.I. for 10 years with a fine of Rs.10,000/- with default stipulation in each.

As per prosecution case, on dated 17.08.2015, prosecutrix aged 16 years 7 months was missing from her house. She was searched but not found. Then, FIR was lodged. Thereafter, prosecutrix recovered on dated 01.09.2015 from the possession of appellant-accused. Prosecutrix stated that present appellant-accused kidnapped her and took her to Dhar and committed intercourse with her.

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 neither appreciated the evidence in perspective way nor considered the law in proper way. Actually, at the time of incident, prosecutrix was above 18 years. Prosecution has produced Manjusha (PW- Signature Not Verified SAN

5), who is Principal of Prathmik Shala Fatehpur stated that according to

Digitally signed by PALLAVI SINHA Date: 2021.05.07 11:04:03 IST 2 CRA-3918-2016 dakhila Register the date of birth of prosecutrix is 21.01.1999. She admitted this fact that she did not make entry of date of birth of prosecutrix at the time of admission in the School Register. She did not disclose the source of date of birth of prosecutrix. Prosecution also did not produce the source of date of birth of prosecutrix so the evidence of Manjusha (PW-5) is not reliable. Ramdulari (PW-1) and Raju (PW-8) is respectively mother and father of the

prosecutrix. They did not disclose the date of birth of prosecutrix. They disclosed the estimated age of prosecutrix. Apart from this, prosecutrix is examined by Dr. Vandana Chouksey (PW-4). She stated that secondary sexual character of prosecutrix were well-developed. So, the age of prosecutrix is not proved. Appellant-accused cannot be convicted on the estimated age of the prosecutrix. Prosecutrix is wholly consenting party in this case. Prosecutrix went with appellant-accused at various places. She lived with appellant-accused as his wife. She did not raise any objection during that period. So, it is evident from the record that prosecutrix is wholly consenting party in this case. Appellant-accused is in jail since 03.09.2015. This appeal is of year 2016. It is the time of pandemic COVID-19 due to which 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 in regards of age of prosecutrix, fact of consent of prosecutrix and also this fact that appellant-accused has served half of his jail Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.05.07 11:04:03 IST 3 CRA-3918-2016 sentence, this appeal is of year 2016, 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-Jitendra 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 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

Signature Not Verified SAN Pallavi

Digitally signed by PALLAVI SINHA Date: 2021.05.07 11:04:03 IST 4 CRA-3918-2016

Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.05.07 11:04:03 IST