Madhya Pradesh High Court
Kalu @ Ravi @ Ravindra @ Ravindri vs The State Of Madhya Pradesh on 15 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-4648-2017
The High Court Of Madhya Pradesh
CRA-4648-2017
(KALU @ RAVI @ RAVINDRA @ RAVINDRI Vs THE STATE OF MADHYA PRADESH)
20
Jabalpur, Dated : 15-09-2021
Shri Vinod Tiwari, Advocate for the appellant.
Shri Ashish Patel, P.L. for the respondent/State.
Heard on I.A. No. 13456/2021, which is third application for
suspension of sentence and grant of bail to the appellant. Earlier
applications were dismissed for want of prosecution vide order dated
20.07.2018 & 18.09.2019.
The appeal has been preferred under Section 374(2) of the
Cr.P.C.,1973 b y the appellant/accused against judgment dated
10.10.2017 passed by learned Fifth Additional Sessions Judge,
Khandwa, (MP) in Special Session Case No. 78/2015, by which the
appellant has been convicted for offence under Section 363 of IPC and
has been sentenced to undergo R.I. for 3 years with fine of Rs. 1500/-,
Section 366 of IPC and has been sentenced to undergo R.I. for 5 years
with fine of Rs. 2,000/- and Section 6 of POCSO Act and has been
sentenced to undergo R.I. for 10 years with fine of Rs. 4000/-. Default
stipulation has also been imposed by the trial Court.
Prosecution case, in short, is that on 29.04.2015 appellant-accused
kidnapped the prosecutrix aged 16 years. FIR was lodged, Thereafter, on
04.05.2015 prosecutrix was recovered. It is alleged by the prosecution
that appellant-accused kidnapped the prosecutrix and kept her in his
house and committed intercourse with her.
Le a r ne d counsel for the appellant/accused submits that
appellant/accused has falsely been implicated in this case. Learned trial
Court committed grave error in convicting and sentencing the
appellant/accused. Learned trial Court did not appreciate the evidence
Signature Not Verified
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.15 17:49:06 IST
2 CRA-4648-2017
in prospective way. Appellant-accused and prosecutrix are neighbours,
they love each other, they are belong to ST community so, they ran away
but prosecutrix was recovered and she was pressurized to give false
statement against the appellant-accused. It is not proved that at the time
of incident, prosecutrix was below 18 years. Father of prosecutrix PW/2
admitted this fact that prosecutrix was born at government hospital but
birth certificate is not produced. No documentary evidence is produced
in regards to date of birth of the prosecutrix. Parents of the prosecutrix
did not disclose the date of birth of prosecutrix. Learned trial court
determined the age of prosecutrix on the basis of oral evidence of
witnesses and the evidence of Dr. P.L. Agrawal PW/11 who determined
the age of prosecutrix on the basis of ossification test. He found that
prosecutrix is 15 to 16 years is old girl, so the age of the prosecutrix
may be above 18 years. Prosecutrix is consenting party in this matter.
PW/5 Durga Bai deposed before the trial court that prosecutrix was
going with the appellant-accused in motor cycle but prosecutrix did not
raise any objection. There is material contradiction and omissions in the
evidence of prosecutrix witnesses. There is every possibility to succeed
in this appeal. It is the time of COVID-19 pandemic due to which final
hearing of this appeal will take time. This appeal is year 2017.
Appellant-accused is in custody since 10.10.2017 till now. During the
trial he remained in jail from 05.05.2015 to 20.07.2015, so he has served
almost 4 years jail sentence out of 10 years. 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 grant of bail of present accused/ appellant.
Learned Panel Lawyer has opposed the application and prayed for
its rejection.
Signature Not Verified
SAN
Learned counsel for objector has no objection if the jail sentence
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.15 17:49:06 IST
3 CRA-4648-2017
of the appellant is suspended and grant bail to him.
Considering the arguments advanced by learned counsel for the
parties and the fact that the age of prosecutrix is disputed, no
documentary evidence is produced before the trial court in regards to
date of birth of the prosecutrix, appellant-accused is in custody since
10.10.2017 till now and during the trial he remained in jail from
05.05.2015 to 20.07.2015, so he has served almost 4 years jail sentence
out of 10 years this appeal is year 2017, it is the time of COVID-19
pandemic due to which hearing of the appeal will take time for its final
disposal, so 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 appellant-Kalu @ Ravi @
Ravindra @ Ravindri 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 26th November, 2021
and thereafter on all other such subsequent dates, as may be fixed by the
trial court in this regard.
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 :-
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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'Corona Virus disease'. For this purpose appropriate tests will be carried
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.15 17:49:06 IST
4 CRA-4648-2017
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)
JUDGE
MISHRA
Signature Not Verified
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.15 17:49:06 IST
