Rajkumar vs The State Of Madhya Pradesh
2021 Latest Caselaw 5381 MP

                                                                       1                             CRA-773-2021
                                               The High Court Of Madhya Pradesh
                                                          CRA-773-2021
                                                         (RAJKUMAR Vs THE STATE OF MADHYA PRADESH)

                                        8
                                        Jabalpur, Dated : 14-09-2021
                                             Heard through Video Conferencing.

                                             Shri Sourabh Bhushan Shrivastava, Advocate for the appellant.
                                             Shri Gopal Jaiswal, Panel Lawyer for the respondent-State.

Record of the court below is available on record.

Appeal is admitted for hearing.

Heard on I.A.No.1850/2021, which is an application filed by the accused/appellant, under section 389 (1) of Cr.P.C. for suspension of his jail sentence awarded by the Court of learned II Addl. Sessions Judge Gadarwara, District Narsinghpur (MP), in S.T. No.33/2020, vide its judgment dated 25.1.2021 convicting the appellant/accused for offence punishable under Sections 363 & 366 of the IPC and sentenced him to undergo RI for 3 year with fine of Rs.1,000/-, on both count and Section 376 (2)(i) & 376(2)(n) of the IPC he is

sentenced to undergo RI for 10 years with fine of Rs.2,000/-, on both count, with default stipulation, on each count.

A s per prosecution case, on 27.9.2017, prosecutrix aged 17 years 2 months was missing from her house. She was searched, but not found, then FIR was lodged. Thereafter, prosecutrix was recovered. It is alleged by the prosecution that accused/appellant kidnapped prosecutrix and took her at various places and thereafter he committed intercourse with her.

Learned counsel for the accused/appellant submits that learned trial Court committed grave error in convicting and sentencing the Signature Not Verified SAN accused/appellant. It is not proved that at the time of incident Digitally signed by ASHWANI PRAJAPATI Date: 2021.09.14 18:16:02 IST 2 CRA-773-2021 prosecutrix was below 18 years. Although, prosecution produced Chandrashekhar Shukla (PW/9), who is the Principal of Primary School, Lilwani, who deposed before the trial Court that date of birth of prosecutrix is 1.7.2000. Learned trial Court held that the age of prosecutrix is 17 years, 2 months and 20 days at the time of incident,

but it is not proved that what is the source of information about the date of birth of prosecutrix. Parents of prosecutrix did not disclose the date of birth of prosecutrix. Prosecutrix (PW/3) deposed before the trial Court that she is 19 years of age, so the age of prosecutrix is disputed. Prosecutrix (PW/3) is consenting party. Apart from this, prosecutrix and accused/appellant solemnized marriage and blessed with one child, so accused/appellant is husband of prosecutrix and father of child of prosecutrix. Although, DNA report is positive, but accused/appellant is the husband of prosecutrix so, DNA report is not conclusive proof to convict the accused/appellant. During trial, accused/appellant was granted bail. Accused/appellant is in jail since 25.1.2021 till now. He remained in jail during the trial from 31.1.2018 to 13.3.2018. This appeal is of the year 2021. It is the time of COVID-19-Pandemic, so conclusion of this appeal will take long time. This appeal is of year 2021, trial will take time to conclude the same. There are material contradictions and omissions in the statement of the witnesses. There is fair chance to succeed in the appeal. There is no likelihood of his absconding and tampering with the evidence. Under the 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

Signature Not Verified grant of bail of present accused/ appellant.

SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.09.14 18:16:02 IST 3 CRA-773-2021 Learned Panel Lawyer has opposed the application and prayed for its rejection.

Prosecutrix is present in person with a child. She admitted this fact that she is the wife of accused/ appellant at the time of incident. Apart from this, she also solemnized marriage according to their rites and rituals with accused/appellant.

Having considered the arguments advanced by learned counsel for the parties and the fact that age of prosecutrix is disputed, accused/appellant is in jail since 25.1.2021 till now, he remained in jail during the trial from 31.1.2018 to 13.3.2018, this appeal is of

year 2021, final hearing of this appeal will take time, but without commenting anything on the merit 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-Rajkumar 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 amount of Rs. 50,000/- to the satisfaction of the trial Court for his appearance before the trial court on 20.10.2021 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.

In view of the outbreak of 'Corona Virus disease (COVID-19)'

Signature Not Verified the applicant shall also comply with the rules and norms of social SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.09.14 18:16:02 IST 4 CRA-773-2021 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 Vi ru 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

A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.09.14 18:16:02 IST