Triyodaya @ Vinod Prajapati vs The State Of Madhya Pradesh
2021 Latest Caselaw 7781 MP

                                    1                              CRA-1561-2017
        The High Court Of Madhya Pradesh
                 CRA No. 1561 of 2017
           (TRIYODAYA @ VINOD PRAJAPATI Vs THE STATE OF MADHYA PRADESH)

16
Jabalpur, Dated : 24-11-2021

      Shri A.K. Saxena, Advocate for the appellant.
      Ms. Seema Jaiswal, Panel Lawyer for the respondent-State.

Record of the court below is available on record. Appeal is admitted for hearing.

Heard on I.A.No.5039/2021, which is forth 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 Additional Sessions Judge, Satna, District Satna (MP), vide its judgment dated 06.07.2017 convicting the appellant/accused for offence punishable under Section 376(2) of the IPC, he is sentenced to undergo RI for 10 years with fine of Rs.1,000/-,with default stipulation and offence punishable under Section 450 of IPC, he is sentenced to undergo RI

for 10 years with fine of Rs. 1,000/- with default stipulation.Earlier bail applications were dismissed.

A s per prosecution case, on 16.3.2016, appellant/accused entered into the house of prosecutrix aged about 15 years and committed intercourse with her.

Learned counsel for the accused/appellant submits that that learned trial Court committed grave error in convicting and sentencing the accused/appellant. Learned trial Court did not appreciate the evidence in perspective way. His first bail application under Section 389 of Cr.P.C. was dismissed on 26.07.2017 with liberty to renew his prayer after undergoing substantial part of sentence. Appellant/accused has served the almost 6 years of jail 2 CRA-1561-2017 sentence out of 10 years. Actually, it is not proved beyond reseanable doubt that at the time of incident, prosecutrix was below 18 years. Raviprakash Khare (Pw-6) deposed before the trial Court that the date of birth of prosecutrix is 02.11.2001 but he admitted this fact that at the time of admission he was not posted at that school. He has no

knowledge source of information of date of birth of prosecutrix. Other family members did not deposed before the trial Court that what is the date of birth of prosecutrix. Prosecutrix was examined by lady doctor and she deposed before the trial Court that her secondary sexual character were found developed. So the age of prosecutrix may be above 18 years. It appears from the statement of witness that prosecutrix is consenting party. She was seen with the appellant/accused but she did not crying at the time of incident. There a r e material contradictions and omissions in the statement of the witnesses. Appellant/accused has almost served the 6 years of jail sentence out of 10 years. This appeal is year 2017. Trial will take time to conclude the same. 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 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 of present accused/ appellant.

Learned Panel Lawyer has opposed the application. Having considered the arguments advanced by learned counsel for the parties and the fact that the age of the prosecutrix is disputed, it appears from the record that prosecutrix may be consenting party in this matter, appellant/accused has almost served the 6 years of jail 3 CRA-1561-2017 sentence out of 10 years, this appeal is of year 2017, final hearing of this appeal will take time, but 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 the appellant- Triyodaya @ Vinod Prajapati 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 amount of Rs. 50,000/- to the satisfaction of the trial Court for his appearance before the trial court

on 10.1.2022 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 R

Digitally signed by KUNDAN SHARMA Date: 2021.11.24 16:56:42 +05'30'