Madhya Pradesh High Court
Chhotu Balmiki vs The State Of Madhya Pradesh on 23 October, 2021
Author: Rajendra Kumar Srivastava
1 CRA-5737-2019
The High Court Of Madhya Pradesh
CRA-5737-2019
(CHHOTU BALMIKI Vs THE STATE OF MADHYA PRADESH)
20
Jabalpur, Dated : 23-10-2021
Heard through Video Conferencing.
Shri Vijay Shankar Pandey, learned counsel for the appellant.
Shri Anoop Sonkar, learned P.L.for the respondent/State.
Heard on I.A. No.528/2021, which is repeat (second) application for
suspension of sentence and grant of bail to the appellant. Earlier application
being I.A.No.12724/2019, is dismissed as withdrawn by order dated
11.2.2020.
The appeal has been preferred under Section 374(2) of the
Cr.P.C.,1973 b y the appellant/accused against judgment dated 24.5.2019
passed by learned 1st Additional Sessions Judge Pipariya, District-
Hoshangabad (MP) in Session Trial No.51/2017, by which the appellant has
been convicted for offence under Sections 376(2) of IPC and has been
sentenced to undergo R.I. for 10 years with fine of Rs. 1,000/-, Section 363
of IPC, he has been sentenced to undergo R.I. for 3 years with fine of Rs.
1000/- and Section 366 of IPC he has been sentenced to undergo R.I. for 3
years with fine of Rs. 1,000/-. Default stipulation has also been imposed by
the trial Court.
Prosecution case, in short, is that on 2.3.2017, prosecutrix below 16
years was missing from her house. She was searched, but not found. FIR
was lodged. On 6.6.2017, prosecutrix was recovered from the possession of
present accused/appellant at Noor Nagar, Tahsil Udaipura, District Raisen. It
is alleged by the prosecution that accused/ appellant kidnapped prosecutrix
and took her at various places and accused/appellant committed intercourse
with her.
Learned counsel for the appellant/accused submits that learned trial
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C o u r t committed grave error in convicting and sentencing the
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Date: 2021.10.23 17:47:44 IST
2 CRA-5737-2019
appellant/accused. Learned trial Court did not appreciate the evidence in
perspective way. It is not proved beyond reasonable doubt that at the time of
incident, prosecutrix was below 18 years. Although, Manendra Singh (PW/9)
deposed before the trial Court that date of birth of prosecutrix is 3.5.2003,
but he admitted this fact that he has no knowledge that what is the source of
information about date of birth of prosecutrix. Parents of prosecutrix did not
disclose the date of birth of prosecutrix. There are material contradictions in
the evidence of prosecution with regard to the date of birth and age of
prosecutrix. Dr. Anita Sahu (PW/10) examined the prosecutrix. She
deposed before the trial Court that secondary sexual characters of
prosecutrix were well developed, so the age of prosecutrix may be above 18
years. Prosecutrix is consenting party in this matter. Prosecutrix is residing
with accused/appellant at various places for about 2-3 months, but she did
not raise any objection during this period. There are material contradictions
and omissions in the statement of prosecution witnesses. Appellant/accused
is in jail since 6.6.2017 till now. So, he has served almost half sentence out of
10 years jail sentence. This appeal is of the year 2019. There are fair chances
to succeed in the appeal. 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 sentence may be suspended further and he may be
released on bail.
Learned P.L. for the respondent/State has opposed the application.
Hearing the argument of both the parties and this fact that age of
prosecutrix is disputed, prosecutrix was residing with accused/appellant for
2-3 months, but she did not raise any objection during this period,
appellant/accused is in jail since 6.6.2017 till now, therefore, he has served
almost half sentence out of 10 years jail sentence, this appeal is of the year
2019, final hearing of this appeal will take time, but without expressing any
opinion on the merits of the case, I am of the considered opinion that it would
be appropriate to suspend the execution of jail sentence awarded to the
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Date: 2021.10.23 17:47:44 IST
3 CRA-5737-2019
appellant and grant bail to him.
Consequently, I.A. No.528/2021 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-Chhotu Balmiki 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 11.1.2022 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
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
A.Praj.
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Digitally signed by ASHWANI PRAJAPATI
Date: 2021.10.23 17:47:44 IST
