Madhya Pradesh High Court
Sujeet vs The State Of Madhya Pradesh on 16 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-9283-2019
The High Court Of Madhya Pradesh
CRA-9283-2019
(SUJEET AND OTHERS Vs THE STATE OF MADHYA PRADESH)
19
Jabalpur, Dated : 16-09-2021
Heard through Video Conferencing.
Shri Jayant Neekhra, Advocate for the appellants.
Shri Reji Mathai, Panel Lawyer for the respondent-State.
Record of the court below is available on record.
Appeal is already admitted for hearing on 17.2.2020.
Heard on I.A.No.5008/2021, which is repeat (second) application
filed by the accused/appellant No.2-Nitish, under section 389 (1) of
Cr.P.C. for suspension of his jail sentence awarded by the Court of Special
Judge SC/ST(Atrocities), Act, Betul, District Betul (MP), in SC.ATR
No . 20/2017 vide its judgment dated 31.8.2019, convicting the
accused/appellant No.2 under Section 343 of IPC and sentenced to undergo
R.I. for 6 months with fine of Rs.500/-, Section 363 of IPC and sentenced to
undergo R.I. for 3 years with fine of Rs.500/- and Section 376(2)(1) of IPC
and sentenced to undergo R.I. 10 years with fine of Rs.1,000/-, with default
stipulation on each count, as mentioned in the impugned judgment. Earlier
application being I.A.No.2499/2020, has been dismissed on merit.
As per prosecution case, on 25.3.2017, prosecutrix (PW/4)-R, lodged
a report against the accused/appellant No.2-Nitish and other co-accused
Sujeet. It is alleged by her that on 21.3.2017, she and her friend (PW/3)-B
went to Nadiyaghat market. Thereafter, in the evening time at 8:00 P.M. when
they were returning on the way, present accused/appellant No.2-Nitish and
co-accused Sujeet met them on a motorcycle, they proposed to sit on their
motorcycle, they accepted the proposal of accused/appellant No.2 and co-
accused, and thereafter, they sat on their motorcycle. Accused/appellant and
co-accused took them in a hut situated in the field of one Burjan Bangali.
Signature Not Verified
SAN
Accused/appellant No.2 and co-accused detained prosecutrix (PW/3)-B and
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.20 17:53:33 IST
2 CRA-9283-2019
(PW/4)-R in that hut. Accused/appellant committed intercourse with
prosecutrix (PW/3)-B and other co-accused Sujeet committed intercourse
with prosecutrix (PW/4)-R. On 25.3.2017, prosecutrix (PW/3)-B and
(PW/4)-R reached there house, disclosed all the incident to their parents and
lodged the report. At the time of incident, prosecutrix were below 16 years.
L e a r n e d counsel for the appellant/accused submits that
accused/appellant has been falsely implicated in this case. Learned trial Court
committed grave error in convicting and sentencing the accused/appellant.
Learned trial Court did not appreciate the evidence in perspective way. The
age of prosecutrix (PW/3)-B is not proved below 18 years at the time of
incident. Although, learned trial Court determined the age of prosecutrix
(PW/3)-B 14 years 3 months and (PW/4)-R 14 years 6 months on the basis
of birth certificate of school. Dasan Bethe (PW/8) is Assistant Teacher, who
proved the date of birth of prosecutrix (PW/3)-B and (PW/4)-R. He
deposed before the trial Court that the date of birth of prosecutrix (PW/3)-Bis
3.1.2003 vide Ex.P/17, but he admitted in his cross- examination that the date
of birth of prosecutrix (PW/3)-B is written by her father on the basis of
estimation. No document with regard to date of birth is produced at the time
of admission. The parents of prosecutrix (PW/3)-B did not disclose the date
of birth of prosecutrix (PW/3)-B, so the source of information of date of
birth of prosecutrix (PW/3)-B, is not proved. In this view, it cannot be said
that at the time of incident, the age of prosecutrix (PW/3)-B was below 18
years. Learned trial Court itself held that prosecutrix (PW/3)-B and (PW/4)-
R are consenting party in this matter. The execution of jail sentence of other
co-accused Sujeet has already been suspended by this Court and without
considering the evidence with regard to age of prosecutrix (PW/3)-B,
previously, this Court dismissed the application (I.A.No.2499/2020) for
suspension of jail sentence of accused/appellant No.2. The case of
accused/appellant No.2-Nitish is also similar to co-accused Sujeet.
Accused/appellant is in jail since 27.3.2017 to 31.8.2019 till now, so he has
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.20 17:53:33 IST
3 CRA-9283-2019
served almost 4 years 6 months out of 10 years of his jail sentence. This
appeal is of year 2019. It is the time of COVID-19, Pandemic, due to which
hearing of this appeal 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 sentence of
the appellant is not suspended, his right to file appeal will be futile. Hence,
prayer is made for suspension of execution of his jail sentence and grant of
bail of present accused/ appellant No.2-Nitish.
Learned Panel Lawyer has opposed the application and prayed for its
rejection.
Having considered the arguments advanced by learned counsel for the
parties, on perusal of the record and the fact that age of prosecutrix (PW/3)-
B is disputed. Learned trial Court itself held that the age of prosecutrix
(PW/3)-B is consenting party in this matter, accused/appellant is in jail since
27.3.2017 to 31.8.2019 till now, so he has served almost 4 years 6 months out
of 10 years of his jail sentence, this appeal is of year 2019, it is the time of
COVID-19-Pandemic, due to which 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 No.2-Nitish 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 15.11.2021 and thereafter on all other such subsequent dates,
as may be fixed by the trial court in this regard.
In case, the appellant No.2 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
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SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.20 17:53:33 IST
4 CRA-9283-2019
Court is kept informed.
I n view of the outbreak of 'Corona Virus disease (COVID-19)' the
applicant 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 No.2 by the jail doctor before his release.
2 . The appellant No.2 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 No.2 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
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.20 17:53:33 IST
