[email protected] vs The State Of Madhya Pradesh
2021 Latest Caselaw 7399 MP

                                                                     1                               CRA-2730-2017
                                           The High Court Of Madhya Pradesh
                                                    CRA No. 2730 of 2017
                                                  ([email protected] Vs THE STATE OF MADHYA PRADESH)

                                   5
                                   Jabalpur, Dated : 15-11-2021
                                         Shri Pratap Narayan Mishra, Advocate for the appellant.
                                         Shri Lokesh Jain. for the respondent-State.

Record of the trial Court has been received.

Also heard on I.A. No. 5001/2020 an application for suspension of sentence awarded to the appellant and grant of bail.

Vide judgment dated 09.06.2017 in Special Sessions Case No. 15/2016 passed by learned First Additional Sessions Judge, Amarpatan, Satna M.P. the appellant has been convicted for the offence punishable under Section 18 of POCSO Act and has been sentenced to undergo R.I. for 10 years with fine of Rs. 1,000/- and under Section 506-II of IPC and has been sentenced to undergo R.I. for 2 years and fine of Rs. 500/- with default stipulations.

As per prosecution case, on 11.01.2016 appellant-accused committed intercourse with the prosecutrix below 12 years.

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 not proved that at the time of incident, prosecutrix was below 12 years, although prosecution has filed school certificate in regards to date of birth of prosecutrix but Smt. Asha Thakur PW/7 deposed before the trial court that the name of prosecutrix is different, so the age of prosecutrix is not proved. Prosecutrix was examined by Dr. Aditi Singh (PW-10). She deposed before the Trial Court that at the examination of prosecutrix, her hymen was intact, no injury is found on the body of prosecutrix. No swelling or redness is found in her minora mizora. No sperm was found neither on the slide of the prosecutrix nor on her underwear, which is clear from FSL report, which is Signature Not Verified SAN annexed as Ex.P-14. So, the medical report and FSL report of prosecutrix

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.11.15 16:54:59 IST 2 CRA-2730-2017 did not support the case of prosecution. Apart from this, there are material contradiction and omission in the statement of the prosecution witnesses. So, it is a case of purely false implication of the appellant. Appellant-accused is in jail since 13.01.2016, so he has served almost 6 years of jail sentence out of 10 years awarded jail sentence. This appeal is of year 2017 and final hearing of this appeal will take long time. There is fair chance to succeed in the

appeal. 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.

Hearing arguments advanced by both the parties and the facts that prosecutrix was examined by a lady doctor but she fount that at the examination of prosecutrix, her hymen was intact, no injury is found on the body of prosecutrix, no swelling or redness is found in her minora mizora, appellant and prosecutrix is neighbour, appellant-accused is in jail since 13.01.2016, so he has served almost 6 years of jail sentence out of 10 years awarded jail sentence. This appeal is of year 2017 and final hearing of this appeal will take long 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-Ramvishwas @ Babu 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 22.02.2022 and thereafter on all other such subsequent dates, as may be fixed by the trial court in this regard. Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.11.15 16:54:59 IST 3 CRA-2730-2017 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 as per listing policy. C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE MISHRA

Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.11.15 16:54:59 IST