Gudda vs The State Of Madhya Pradesh
2021 Latest Caselaw 4897 MP

                                1                           CRA-3968-2017
       The High Court Of Madhya Pradesh
                  CRA-3968-2017
                   (GUDDA Vs THE STATE OF MADHYA PRADESH)

12
Jabalpur, Dated : 01-09-2021

     Shri Jafar Khan Advocate for the appellant.
     Ms. Seema Jaiswal, PL for the respondent/ State.

Record of the court below is available.

Appeal is admitted for hearing.

Heard on I.A. No. 4000/2021, which is second application for suspension of sentence and grant of bail to the appellant. First application was dismissed as withdrawn.

The appeal has been preferred under Section 374(2) of the Cr.P.C.,1973 b y the appellant/accused against judgment dated 02.08.2017 passed by learned Additional Sessions Judge, Special Court No. 10, Sagar (MP) in S.T. No. 3900128/2016, by which the appellant has been convicted for offence under Sections 366-Ka of

IPC and sentenced to undergo R.I. for 5 years with fine of Rs.5000/-, Section 376 of IPC and sentenced to undergo R.I. for 10 years with fine of Rs. 10,000/-, with default stipulations respectively.

Prosecution case, in short, is that on dated 02.03.2016, below 16 years was missing from her house. She was searched but not found. Then gum Insan Ex. P/3 was lodged. Thereafter, prosecutrix was recovered on 06.03.2016. It is alleged by the prosecution that present appellant-accused kidnapped and took her and committed intercourse with her.

Learned counsel for the appellant/accused submits that learned trial Court has committed grave error in convicting and sentencing the appellant/accused. Learned trial Court did not appreciate the evidence 2 CRA-3968-2017

in perspective way. It is not proved beyond reasonable doubt that at the time of incident, prosecutrix was below 18 years. Although Dalchand PW-1, deposed before the Trial Court that the date of birth of the prosecutrix in the school register is mentioned as 12.04.2001 but he admitted that at the time of admission in the school, he did not

enter the date of birth of prosecutrix in admission register. He further deposed that he does not know the source of information of date of birth of prosecutrix. He again deposed that he also does not know that who enter the date of birth of the prosecutrix. no documentary evidence is available in the school. Father of prosecutrix Damodar PW/7 deposed before the trial court at the time of incident, the prosecutrix was above 18 years. Mother of prosecutrix Tulsa Bai PW/9 deposed before the trial court that at the time of incident the prosecutrix was 19 years, so the date of birth of prosecutrix is not proved beyond reasonable doubt. So it can not be said that at the time of incident prosecutrix was below 18 years. Prosecutrix PW/6 deposed before the trial court that she went with the appellant- accused various place but prosecutrix did not raise any objection, so prosecutrix PW/6 may be consenting party in this matter. At the time of incident, appellant-accused was also 24 years, so it is the matter of love affair. There are material contradiction and omission in the evidence of the witnesses. Appellant-accused remained in jail since 12.03.2016 till now, so he has served almost 5 years 5 months. There is every possibility to succeed in the case. This appeal is of the year 2017. 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 execution of his remaining jail 3 CRA-3968-2017 sentence may be suspended and he may be released on bail.

PL 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 may be consenting party, appellant-accused is in jail since 12.03.2016 so he has served 5 years 5 months sentence out of 10 years, this appeal is of year 2017, it is time of COVID-19 pandemic, due to this, 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 appellant and

grant bail to him.

Consequently, I.A. No. 4000/2021 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-Gudda be released from custody subject to his furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Thousand Only), w i t h 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 20.12.2021 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.

In 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 :-

4 CRA-3968-2017

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 Vi ru s 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 MISHRA

ARVIND KUMAR MISHRA 2021.09.01 18:01:22 +05'30'