Manish Kumar Paraste vs The State Of Madhya Pradesh
2021 Latest Caselaw 6429 MP

                                   1                              CRA-6563-2018
        The High Court Of Madhya Pradesh
                   CRA-6563-2018
               (MANISH KUMAR PARASTE Vs THE STATE OF MADHYA PRADESH)

8
Jabalpur, Dated : 05-10-2021
       Heard through Video Conferencing.
       Shri R.K. Bisen, learned counsel for the appellant.
       Shri Santosh Yadav, learned P.L. for the respondent/State.

Prosecutrix is present in person with her parents, they are identified by appellant's counsel.

Heard on I.A. No.13465/2021, which is second bail application for suspension of sentence and grant of bail to the appellant-Manish Kumar Paraste.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 b y the appellant/accused against judgment dated 10.02.2017 passed by learned Second Upper Sessions Judge, Balaghat, (MP) in Session Case No.122/2015, by which the appellant has been convicted for offence under Section 376(2)(ke) of IPC and has been sentenced to undergo R.I. for 10 years with fine of Rs. 1,000/-, Section 376(2)(I) of IPC and has

been sentenced to undergo R.I. for 10 years with fine of Rs. 1,000/- and Section 3/4 of POCSO Act and has been sentenced to undergo R.I. for 7 years with fine of Rs. 1,000/-. Default stipulation has also been imposed by the trial Court.

Prosecution case, in short, is that on 28.02.2015, prosecutrix, aged about 17 years, lodged the report. It is alleged by her that appellant/accused and prosecutrix are familiar with each other since January, 2014. Appellant/accused proposed marry with her. Due to this, appellant/accused committed intercourse with her on the false pretext of marriage. Thereafter, prosecutrix became pregnant, then she disclosed this fact to the appellant/accused. Then appellant/accused refused to marry with her. Prosecutrix disclosed this fact to her parents and lodged the report.

2 CRA-6563-2018 Learned counsel for the appellant/accused submits that his earlier application under Section 389 of Cr.P.C. was dismissed on 11.02.2021. But while considering the first application of appellant/accused, this fact was not considered regarding the age of prosecutrix and consent of prosecutrix. Learned trial Court committed grave error to convict and sentence the

appellant/accused. Learned trial Court did not appreciate the evidence in perspective way. Actually, at the time of incident, prosecutrix was above 18 years. Although, prosecution produced Hemlat Maravi (PW-12), who is the In-charge of Principal of Government High School, Navhi. She deposed before the trial Court that the date of birth of prosecutrix is 11.02.2001. She also produced admission register vide Ex. P-13 but she admitted this fact that she did not know what is the source of date of birth of prosecutrix, who entered the date of birth of prosecutrix at the time of admission. The parents of prosecutrix did not disclose the date of birth of prosecutrix. They also did not disclose that at the time of admission of prosecutrix, who had gone with prosecutrix. Dr. Preeti (PW-15) examined the prosecutrix. She deposed before the trial Court that secondary sexual character of prosecutrix was found well developed. So, it is not proved beyond the reasonable doubt that at the time of incident, prosecutix was below 18 years. Apart from this, prosecutrix is consenting party in this matter. She did not disclose about the incident to anyone for 9 months. During this appeal, both party entered into the compromise. Prosecutrix delivered a child. Appellant/accused is father of that child. Prosecutrix is residing in the house of appellant/accused. There are material contradictions and omissions in the evidence of witnesses. During trial, appellant/accused remained in jail from 04.03.2015 to 29.09.2016. Thereafter, appellant/accused is in jail since 10.02.2017 till now. So, he has served almost half sentence. This appeal is of the year 2018. There are fair chances to succeed in the appeal. It is time of COVID-19 pandemic, due to this, final hearing of this appeal will take time. Therefore, the application filed on behalf of the appellant may be allowed and the period of his remaining jail 3 CRA-6563-2018 sentence may be suspended further and he may be released on bail.

Learned P.L. for the respondent/State has opposed the application. Prosecutrix is present in person with her parents. She stated that she delivered a child, she is residing in the house of appellant/accused. Both party are agreed to solemnized marriage with each other. Therefore, she prays for allowing this application for suspension of sentence and grant of bail to the appellant.

Considering the argument of both the parties and this fact that age of prosecutrix is disputed, prosecutrix is wholly consenting party in this matter, she did not disclose about the incident for 9 months, apart from this, prosecutrix and appellant/accused are ready to solemnize marriage with each

other, prosecutrix is residing in the house of appellant/accused, appellant/accused has served almost half sentence out of 10 years jail sentence., this appeal is of the year 2018, it is time of COVID-19 due to this final hearing of this appeal will take time, but without expressing any opinion on the merits of the case, I am o f the considered opinion that it would be appropriate to suspend the execution of jail sentence awarded to the appellant and grant bail to him.

Consequently, I.A. No.13465/2021 is allowed subject to deposit of fine amount, if not already deposited. The custodial sentence awarded to the appellant shall remain suspended during the pendency of this appeal.

Appellant-Manish Kumar Paraste be released from custody subject to his furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only), with one surety in the like amount, to the satisfaction of the trial Court. The appellant shall appear and mark his presence before the trial Court on 30.11.2021 and shall continue to do so on all such future dates, as may be given by the trial Court in this behalf, during pendency of the matter.

I n view of the outbreak of 'Corona Virus disease (COVID-19)' the appellant shall also comply with the rules and norms of social distancing. Further, in view of the order passed by the Hon'ble Supreme Court in suo 4 CRA-6563-2018 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 the matter for final hearing in due course.

C.C. as per rules.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

L.R.

Digitally signed by LALIT SINGH RANA Date: 2021.10.07 16:40:37 +05'30'