Bhura Alias Sanjay vs The State Of Madhya Pradesh
2021 Latest Caselaw 7763 MP

                                                                       1                                  CRA-947-2018
                                             The High Court Of Madhya Pradesh
                                                       CRA No. 947 of 2018
                                                    (BHURA ALIAS SANJAY Vs THE STATE OF MADHYA PRADESH)

                                   15
                                   Jabalpur, Dated : 24-11-2021

                                           Shri Priyank Khandelwal, Advocate for the appellant.
                                           Ms. Seema Jaiswal, Panel Lawyer for the respondent-State.

Heard on I.A.No. 14472/2021, which is third application filed by the appellant under Section 389(1) of the Cr.P.C. for suspension of sentence and grant of bail. Earlier application were dismissed as withdrawn vide orders

dated 11.12.2018 and 07.01.2020.

Accused/appellant has been convicted vide impugned judgment dated 28.07.2017 passed by VII Additional Session Judge, Disrict- Bhopal (M.P.) in S.T. No. 262/2015 under Section 363 of IPC and has been sentenced to undergo rigorous imprisonment for 3 years with fine of Rs.1000/-, Section 366 of IPC and has been sentenced to undergo rigorous imprisonment for 5 years with fine of Rs. 2000/- and Section 5 L/ 6 of POCSO Act and has been sentenced to undergo rigorous

imprisonment for 10 years with fine of Rs.5000/-respectively with default stipulations.

As per prosecution story, on 14.03.2015 prosecutrix is below the age of 14 years was missing from her house. She was searched but not found, thereafter FIR was lodged. Thereafter, prosecutrix was recovered from the possession of the present appellant-accused on 16.03.2015. It is alleged by the prosecution that appellant/accused kidnapped the prosecutrix and committed intercourse with her.

Learned counsel for the appellant-accused submits that learned trial Court committed grave error to convict and sentence to the appellant/accused. Learned trial Court did not appreciate the evidence Signature Not Verified SAN in perspective way. Actually appellant and prosecutrix love each other Digitally signed by ARVIND KUMAR MISHRA Date: 2021.11.24 17:25:04 IST 2 CRA-947-2018 but the parents of the prosecutrix were not ready to accept their relation, so prosecutrix voluntarily came to the appellant-accused, thereafter they ran away but prosecutrix was recovered and appellant was arrested then she lodged false report. It is not proved that at the time of the incident, prosecutrix was below 18 years. Rashmi Shukla (P.W.11) is the

Principal of Decodilf Convent School Gautam Nagar Bairasiya Road Bhopal she deposed before the trial Court that the date of birth of the prosecutrix is 02.05.200 and prosecutrix took the admission in her school on 07.07.2009 at III class. Rashmi Shukla (P.W.11) admitted this fact that at that time of admission birth certificate of the prosecutrix was not produced, so it appears that Rashmi Shukla (P.W.11) has no knowledge that what is the source of information of date of birth of prosecutrix. Parents of the prosecutrix are illiterate, so they did not disclose the date of birth of prosecutrix. Prosecutrix was examined by lady doctor, she deposed before the trial Court that she found the secondary sexual character of the prosecutrix were well developed, so the age of prosecutrix may be 18 years. Prosecutrix PW/1 deposed before the trial court that appellant-accused took her on the promise of marriage but thereafter her relatives reached there and prosecutrix was recovered, so it appears that it is a matter of love affair. Prosecutrix is consenting party in whole incident. There is material contradictions and omissions in the evidence of witnesses. This appeal is of the year 2018. The appellant is in jail since 17.03.2015. So, he has served almost 6 years 6 months sentence out of 10 years jail sentence. Final hearing of this appeal will take considerable time for its final disposal. There is fair chance to succeed in the appeal. Under these circumstances, i f the sentence of the appellant/accused is not suspended, purpose to file this appeal will be futile. Hence, prayer is made for suspension of jail Signature Not Verified SAN sentence and grant of bail of present accused/appellant.

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.11.24 17:25:04 IST 3 CRA-947-2018 Learned PL for the respondent/State opposes the application. Hearing arguments of both the parties and the fact that the age of the prosecutrix is disputed, prosecutrix may be consenting party in this matter, the appellant is in jail since 17.03.2015. So, he has served almost 6 years 6 months sentence out of 10 years jail sentence, this appeal is of the year 2018, final hearing of this appeal will take time, without commenting anything on the merit 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 accused/appellant-Bhura @

Sanjay shall remain suspended during the pendency of this appeal and he shall be released on bail on his furnishing 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 08.03.2022 and thereafter on all other such subsequent dates, as may be fixed by the trial Court in this regard.

In case, accused/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. C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE MISHRA

Signature Not Verified SAN

Digitally signed by ARVIND KUMAR MISHRA Date: 2021.11.24 17:25:04 IST