Madhya Pradesh High Court
Dheerendra Baiga vs The State Of Madhya Pradesh on 16 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-9308-2019
The High Court Of Madhya Pradesh
CRA-9308-2019
(DHEERENDRA BAIGA Vs THE STATE OF MADHYA PRADESH)
12
Jabalpur, Dated : 16-09-2021
Heard through Video Conferencing.
Shri Shankar Prasad Singh, Advocate for the appellant.
Shri Anuj Singh, 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.3489/2020, 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 Special Judge (III A.S.J.), Sidhi (MP), in
Special Case No.194/2016 vide its judgment dated 22.10.2019, convicting the
appellant/accused under Sections 376 of IPC and Sections 5(Eyan) (II)/6 of
IPC & 5(Tha)/6 of POCSO Act and sentenced him to undergo RI for 10
years each with fine of Rs.10,000/- each, with default stipulation on each
count, as mentioned in the impugned judgment.
As per prosecution case, on 5.10.2016, accused/appellant entered into
the house of prosecutrix below 16 years. Thereafter, accused/appellant
committed intercourse with her. When she became pregnant and delivered a
child, then she disclosed about all the incident to her family members and
lodged the report.
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.
Learned trial Court determined the age of prosecutrix as 13 to 17 years on
bone ossification test, so the age of prosecutrix may be above 18 years.
Prosecutrix is consenting party in this matter. Prosecutrix did not disclose
Signature Not Verified
SAN
the incident immediately to any person. When she delivered the child, then
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.16 17:29:17 IST
2 CRA-9308-2019
she disclosed the incident to her family members. Accused/appellant is in jail
since 8.10.2016, so he has served almost 5 years 5 months of his jail sentence
out of 10 years. 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.
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 learned trial Court itself
determined the age of prosecutrix between 13 to 17 years on the basis of
ossification test, prosecutrix did not disclose the incident immediately, when
she delivered the child, then she disclosed all the incident, accused/appellant
has served 5 years 5 months of his sentence out of 10 years, appellant is in
jail since 8.10.2016 till now, 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-Dheerendra
Baiga 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 28.10.2021 and thereafter on all other such subsequent
dates, as may be fixed by the trial court in this regard.
I n case, the appellant is found absent on any date fixed by the trial
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.16 17:29:17 IST
3 CRA-9308-2019
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.
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
applicant 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 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: 2021.09.16 17:29:17 IST
