Jagmohan vs The State Of Madhya Pradesh
2021 Latest Caselaw 7749 MP

                                                                     1                            CRA-2114-2017
                                           The High Court Of Madhya Pradesh
                                                    CRA No. 2114 of 2017
                                                      (JAGMOHAN Vs THE STATE OF MADHYA PRADESH)

                                    26
                                    Jabalpur, Dated : 24-11-2021

                                          Shri Guljar Raput, Advocate for the appellant.
                                          Ms. Seema Jaiswal, Panel Lawyer for the respondent-State.

Record of the court below is available on record. Appeal is already admitted for final hearing. Heard on I.A.No.6003/2021, which is third 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 Special Judge, District- Bhopal, M.P. in Special Case No. 93/2014 vide its judgment dated 03.03.2017 convicting the appellant/accused for the offence punishable under Section 376 (2)(N) of IPC and sentenced him to undergo RI for 10 years with a fine of Rs. 5000/- with default stipulation. The first application was dismissed for want of prosecution on dated 20.07.2018 and second application was dismissed as withdrawn on dated

26.11.2020.

A s per prosecution case, on dated 08.07.2014, complainant- prosecutrix lodged a written complaint in the concerned police station by alleging therein that during the period between 07.06.2014 to 08.07.2014, appellant committed intercourse with her with the help of co-accused Dropti Bai by mixing intoxicating substance in the food of the prosecutrix. All other co-accused abated appellant to commit intercourse with the prosecutrix.

Learned counsel for the accused/appellant submits that learned trial Court committed grave error in convicting and sentencing the accused/appellant. He further submits that Dr. Aditi Arya (PW-9) examined the prosecutrix and found her secondary sexual characters Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.11.30 18:17:48 IST 2 CRA-2114-2017 well-developed. Prosecutrix (PW-1) alleged that with the help of intoxicated substance, appellant committed intercourse with her but neither the proper medical test was done in that regard nor anything related to appellant was made by the prosecution and also no drug article was recovered from the possession of the appellant. He further submits

that it is not proved that at the time of incident, prosecutrix was below 18 years. Although, prosecution has filed a marksheet of the prosecutrix vide Exhibit P-1 but the same is not proved. Birth certificate and other documentary evidence in regards of date of birth of prosecutrix were also not produced. Principal or teacher concerned of the school is also not produced by the prosecution to prove the date of birth of prosecutrix. No other reliable evidence is available on the record on which it can be said that at the time of incident, prosecutrix was below 18 years. The evidence of prosecutrix is not wholly reliable. Other co-accused namely Dropti Bai has already been acquitted by the trial Court for the offence punishable under Sections 376-D of IPC, 506-B of IPC r/w Section 109 of IPC, Section 6 of POCSO Act, 2012 and co-accused Hamir has been acquitted by the trial Court for the offence punishable under Sections 376-D, 354-D and 506-B of IPC on the same evidence. The present appellant has also been acquitted by the trial Court for the offence punishable under Sections 506-B and 354-D of IPC Appellant and other acquitted co-accused were tenants in the premises of prosecutrix. Meanwhile, prosecutrix and appellant-accused established physical relationship with each other voluntarily. Thereafter, some dispute arose between both of them then appellant-accused and co-accused vacated the premises of prosecutrix due to this, appellant-accused has been falsely implicated in this case. There are material contradictions and omissions in the statement of the witnesses. During trial, appellant-accused Signature Not Verified SAN remained in jail from 12.07.2014 to 19.01.2015 and is in jail since Digitally signed by PALLAVI SINHA Date: 2021.11.30 18:17:48 IST 3 CRA-2114-2017 03.03.2017, so he has served more than half of jail sentence awarded by the trial Court,The appellant/accused is 23 years young boy. There is every possibility to get success in this appeal. This appeal is of year 2017. It will take time for final disposal. There is no likelihood of his absconding and tampering with the evidence. In support of his contention, learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Saudan Singh Vs. State of Uttar Pradesh in Special Leave to Appeal (Crl.) No. 4633/2021. It is opined by Hon'ble the Apex Court that "there may be even convicts in custody in cases other than life sentence cases and in those cases

again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail." 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 to the present accused/ appellant.

Learned Panel Lawyer has opposed the application. Having considered the arguments advanced by learned counsel for the parties, looking to the evidence of the case and the facts that the age of prosecutrix is disputed, appellant-accused and other co-accused were tenant in the premises of the prosecutrix, other co-accused namely Dropti Bai has already been acquitted by the trial Court for the offence punishable under Sections 376-D of IPC, 506-B of IPC r/w Section 109 of IPC, Section 6 of POCSO Act, 2012 and co-accused Hamir has been acquitted by the trial Court for the offence punishable under Sections 376-D, 354-D and 506-B of IPC on the same evidence, appellant- accused remained in jail during trial from 12.07.2014 to 19.01.2015 and is in jail since 03.03.2017, so he has served more than half of jail sentence awarded by the trial Court, this appeal is of the year 2017, so it Signature Not Verified

will take time for final hearing, therefore, without commenting anything SAN

Digitally signed by PALLAVI SINHA Date: 2021.11.30 18:17:48 IST 4 CRA-2114-2017

on the merit of the case, I.A. No. 6003/2021 is allowed.

It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant-Jagmohan 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 17.01.2022 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.

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

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

Pallavi

Signature Not Verified SAN

Digitally signed by PALLAVI SINHA Date: 2021.11.30 18:17:48 IST