Madhya Pradesh High Court
Vijay vs The State Of Madhya Pradesh on 1 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-3700-2017
The High Court Of Madhya Pradesh
CRA-3700-2017
(VIJAY Vs THE STATE OF MADHYA PRADESH)
21
Jabalpur, Dated : 01-09-2021
Heard through Video Conferencing.
Shri R.S. Thakur, Advocate for the appellant.
Ms. Seema Jaiswal, Panel Lawyer for the respondent-State.
Record of the trial Court is available.
Heard on the question of admission.
Appeal seems to be arguable; hence, admitted for final hearing.
Also heard on I.A.No.16835/2019, which is an application filed by the
accused/appellant, under Section 389 (1) of Cr.P.C. for suspension of his jail
sentence and grant of bail.
T h e appellant/accused has been preferred this appeal against the
judgment dated 05.09.2017, delivered by the learned Special Judge, POCSO,
Act Harda in S.C. No.01/2017; whereby, the appellant/accused has been
convicted under Section 450 of the I.P.C. and sentenced to undergo R.I. for
3 years with fine of Rs.500/- and Section 363 of the I.P.C. and sentenced to
undergo R.I. for 2 years with fine of Rs.500/-, and Section 366 of the I.P.C.
and sentenced to undergo R.I. for 2 years with fine of Rs.1000/-, and Section
376(2)(I) of the I.P.C. and sentenced to undergo R.I. for 10 years with fine of
Rs.1000/- and Section 3(Ka)/4 of the POCSO Act and sentenced to undergo
R.I. for 10 years with fine of Rs.1000/- with default stipulations, as mentioned
in the impugned judgment.
A s per prosecution case, on 20.03.2016 prosecutrix aged about 16
years lodged the report alleging that on 18.03.2016 at about 2 am
appellant/accused kidnapped and took her at Bhopal and Harda. Thereafter,
appellant/accused committed intercourse with her and thereafter prosecutrix
came to her house.
Learned counsel for the appellant/accused submits that the learned trial
2 CRA-3700-2017
C o u r t committed grave error in convicting and sentencing the
appellant/accused. Learned trial Court did not appreciate the evidence in
perspective way. Learned trial Court itself determined the age of prosecutrix
17 to 18 years. Proseuctix produced Madhav Bat (PW-3) who is an Assistant
Teacher deposed before the trial Court that the date of birth of prosecutrix is
14.01.2002 vide admission register (PW-5) but he admitted this fact that at the
time of admission he was not posted at that school. He has no knowledge
about the source of information of date of birth of prosecutrix. (PW-1) is the
mother of prosecutrix and she did not disclosed the date of birth of
prosecutrix. Dr. G.S. Kushwah (PW-6) determined the age of prosecutrix
between 15 to 17 years. So at the time of incident the age of prosecutrix may
be above 18 years. Apart from this, prosecutrix (PW-2) admitted this fact that
she went with appellant/accused so many places where she did not raise any
objection. So it appears that the prosecutrix is consenting party in the whole
incident. There are material contradictions and omissions in the evidence of
prosecution witnesses. During the trial, appellant/accused remained in jail
from 23.12.2016 to 15.02.2017 and he is in custody since 05.09.2017 till now.
This appeal is of the year 2017. So he has served almost substantial of jail
sentence. It is the time of COVID-19 pandemic, due to this, final hearing of
this appeal will taken time. Therefore, the application filed on behalf of the
appellant/accused may be allowed and execution of remaining jail sentence
may be suspended and he may be released on bail.
Learned Panel Lawyer has opposed the application and prayed for its
rejection.
Having considered the arguments advanced by learned counsel for the
parties and the fact that the age of prosecutrix is disputed, prosecutrix may be
consenting party, appellant/accused has served the substantial of jail
sentence, This appeal is of the year 2017. It is the time of COVID-19
pandemic, due to this final hearing of this appeal will take time, but without
commenting anything on the merit of the case, I am of the considered opinion
3 CRA-3700-2017
that it would be appropriate to suspend the execution of jail sentence awarded
to the appellants and grant bail to them.
Consequently, I.A. No.16835/2019 is allowed. It is ordered that
subject to payment of fine amount, if not already deposited, the execution of
jail sentence of the appellant-Vijay 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 like amount to the satisfaction of the trial Court
for his appearance before the trial Court on 26.10.2021; and thereafter, on
all other such subsequent dates, as may be fixed by the trial Court in this
regard.
I n 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.
I n view of the outbreak of 'Corona Virus disease (COVID-19)' the
appellants 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 hisrelease.
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 this matter for final hearing in due course, as per listing policy.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
4 CRA-3700-2017
JUDGE
R
ROSHNI SINGH PATEL
2021.09.01 18:08:12
+05'30'
