Umesh Kumar @ Dadu Pandey vs The State Of Madhya Pradesh
2021 Latest Caselaw 7782 MP

                                 1                              CRA-1173-2017
       The High Court Of Madhya Pradesh
                CRA No. 1173 of 2017
          (UMESH KUMAR @ DADU PANDEY Vs THE STATE OF MADHYA PRADESH)

31
Jabalpur, Dated : 24-11-2021

      Shri Anuj Pathak, 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.5286/2021, which is sixth 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 Special Judge, POCSO Act, Singrouli, District Singrouli (MP), vide its judgment dated 28.02.2017 convicting the appellant/accused for offence punishable under Section 363 of the IPC, he is sentenced to undergo RI for 3 years with fine of Rs.1,000/-,with default stipulation and offence punishable under Section 366 of IPC, he is sentenced to undergo RI for 4 years with fine of Rs. 1,500/- with default stipulation and offence punishable under Section 343

of IPC, he is sentenced to undergo RI for 2 years with fine of Rs. 1,000/- with default stipulation, offence punishable under Section 376(2)(1) of IPC, he is sentenced to undergo RI for 10 years with fine of Rs. 10,000/- with default stipulation, offence punishable under Section 5(L)r/w 6 of POCSO, he is sentenced to undergo RI for 10 years with fine of Rs. 10,000/- with default stipulation. Earlier bail applications were dismissed.

A s per prosecution case, on 21.02.2015, appellant/accused kidnapped the prosecutrix aged about 14 years and committed intercourse with her on the false pretext of marriage.

Learned counsel for the accused/appellant submits that that learned trial Court committed grave error in convicting and sentencing the 2 CRA-1173-2017 accused/appellant. Learned trial Court did not appreciate the evidence in perspective way. Although, His bail application under Section 389 of Cr.P.C. was dismissed on merits on 11.09.2017 by this Court but at that time, this Court did not consider the evidence in regards of age of prosecutrix. it is not proved beyond reasonable doubt that at the time of

incident, prosecutrix was below 18 years. Rampal Kushwaha(PW-7) is the Principle of Primary School, Uttartola, District Singrouli and he deposed before the trial Court that the date of birth of prosecutrix is 13.07.2001 but he also admitted this fact that he has no knowledge that what is the source of information of the date of birth of prosecutrix. No other witnesses deposed before the trial Court that what is the date of birth of prosecutrix. Due to this the date of birth of prosecutrix is not proved. Prosecutrix is examined by Dr. Richa Tantuway(PW-11) was deposed before the trial Court that her Secondary sexual character were found developed. She is habitual for intercourse. So, the age of prosecutrix may be above 18 years. It appears from the record that prosecutrixis wholly consenting party in this matter. Prosecutrix herself stated before the Judicial Magistrate First Class that she wants to reside with the appellant/accused. Appellant/accused has served the almost 8 years and 3 months 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 3 CRA-1173-2017 appears from the record that prosecutrix may be consenting party in this matter, appellant/accused has almost served the 8 years 3 months of jail 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-Umesh Kumar @ Dadu Pandey 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 16:57:53 +05'30'