Madhya Pradesh High Court
Sunil vs The State Of Madhya Pradesh on 8 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-6351-2020
The High Court Of Madhya Pradesh
CRA-6351-2020
(SUNIL Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 08-09-2021
Heard through Video Conferencing.
Shri V.K. Shukla, Advocate for the appellant.
Ms. Seema Jaiswal, Panel Lawyer for the respondent-State.
Record of the trial Court has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Also heard on I.A. No.13988/2020 an application for suspension
of execution of sentence awarded to the appellant and grant of bail.
The appeal has been preferred under Section 374(2) of the Cr.P.C.,
1973 b y the appellant/accused against judgment dated 08.08.2016 in
Special Sessions Case No. 32/2015 passed by learned 2nd Additional
Sessions Judge, Chhindwara, Distt.-Chhindwara (M.P.), the appellant
has been convicted for the offence punishable under Section 4 of POCSO
Act and has been sentenced to undergo R.I. for 10 years with a fine of Rs.
1,000/- and Section 363 of I.P.C. and has been sentenced to undergo R.I.
for 4 years with a fine of Rs.500/-, with default stipulation in each.
As per prosecution case, prosecutrix aged 16 years and 6 months
lodged the report on 07.03.2015 that appellant/accused committed
intercourse with her on the false pretext of marriage 15 days' ago.
Thereafter, on 06.03.2015, when prosecutrix was alone in her house, then
appellant/accused kidnapped and took her his maternal aunty.
Thereafter, appellant/accused committed intercourse, when the parents of
prosecutrix reached there, then appellant/accused ran away.
Learned counsel for the appellant submits that appellant/accused
has falsely been implicated in this case. It is not proved that at the time of
Signature Not Verified
SAN
Digitally signed by NITESH PANDEY
Date: 2021.09.09 17:27:38 IST
2 CRA-6351-2020
the incident, prosecutrix was below 18 years. Although, prosecution
produced Raju Chourasiya (P.W.4), who is the Teacher of Shashkiya
Prathmik Shala, Kowakheda, Teh, Chourai, District-Chhindwara
deposed before the trial Court that the date of birth of prosecutrix is
15.08.1999 and produced the Admission Register vide Exhibit P/5 in this
regard but he admitted this fact that at the time of admission, he was not
posted at that school. He did not enter the date of birth of prosecutrix in
admission register what is the source of information of date of birth of
prosecutrix, he does not know. No documentary evidence is available in
this regard. The parents of prosecutrix did not disclose the date of birth
of prosecutrix. Dr. Smt. Deepi Mahajan (P.W.6) examined the
prosecutrix, she found secondary sexual characters of the prosecutrix are
well-developed. Doctor determined the age of prosecutrix between 19 to
20 years vide Exhibit D/3. Therefore, the age of prosecutrix may be
above 18 years at the time of the incident. Apart from this, prosecutrix is
a consenting party in this case. She did not disclose the incident
immediately to her parents, when her parents reached in the house of
maternal aunty of the appellant/accused, then the prosecutrix was
recovered and she disclosed the incident. There are material
contradictions and omissions in the evidence of the prosecution
witnesses. Appellant/accused is in custody since 08.03.2015 till now, so
he has served almost 6 years jail sentence out of 10 years. This appeal is
of the year 2020. It is the time of COVID-19 pandemic, due to which
final hearing of this appeal will take time. There is every possibility to
succeed in this appeal. There is no likelihood of his absconding and
tampering with the evidence. Under these 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
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grant of bail to the present appellant-accused.
Digitally signed by NITESH PANDEY
Date: 2021.09.09 17:27:38 IST
3 CRA-6351-2020
On the other hand, learned Panel Lawyer for the respondent-State
opposes the submission of appellant's counsel and prays for its rejection.
Heard and perused the record.
Having considered the arguments advanced by learned counsel for
the parties and this fact that the age of prosecutrix is disputed, she did not
disclose the incident immediately to anyone, appellant-accused is in
custody since 08.03.2015, so he has served almost 6 years jail sentence
out of 10 years, this appeal is of the year 2020, it is the time of pandemic
COVID-19, due to which final hearing of this appeal will take time but
without commenting anything on the merits 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-Sunil 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 same like
amount to the satisfaction of the trial Court for his appearance before the
learned trial Court on 10.11.2021 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.
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
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SAN
Digitally signed by NITESH PANDEY
Date: 2021.09.09 17:27:38 IST
4 CRA-6351-2020
'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 r u s 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)
JUDGE
Nitesh
Signature Not Verified
SAN
Digitally signed by NITESH PANDEY
Date: 2021.09.09 17:27:38 IST
