Hari @ Hariram Kushwaha vs The State Of M.P
2021 Latest Caselaw 5529 MP

                                  1                               CRA-4104-2021
        The High Court Of Madhya Pradesh
                   CRA-4104-2021
            (HARI @ HARIRAM KUSHWAHA Vs THE STATE OF M.P AND OTHERS)

3
Jabalpur, Dated : 16-09-2021
      Heard through Video Conferencing.

      Shri J.P. Singrol, Advocate for the appellant.
      Shri Reji Mathai, Panel Lawyer for the respondent-State.

Record of the Courts below has been received.

Heard on the question of admission.

Appeal is admitted for final hearing.

Also heard on I.A12683/2021, which is an application filed by the appellant under Section 389(1) of the Cr.P.C. for suspension of sentence and grant of bail.

Accused/appellant has been convicted vide impugned judgment dated 06.07.2021 passed by learned Special Judge, (Atrocities) Act, Tikamgarh, Distt.-Tikamgarh (M.P.) in Special Spl. Case (Atr.) No. 59/2017 under Section 354 of IPC and has been sentenced to undergo

R.I. for 3 years with a fine of Rs.2,000/- with default stipulation.

A s per prosecution story, on dated 08.12.2015 at about 6.30 P.M. evening prosecutrix was coming to her house. On the way, appellant-accused stopped her. Appellant-accused caught her and pressed her breast. On that, she cried then her husband and one Kallu Raikwar reached there. Thereafter, she came to her house and disclosed all the incident to her mother-in-law. Thereafter, other co-accused abused with filthy language and inflicted injury by kick and fist to the prosecutrix, her husband and mother-in-law.

Learned counsel for the appellant-accused submits that learned trial Court has committed grave error to convict and sentence the appellant- accused. He further submits that prosecutrix (PW-1) admitted this fact that she did not identify the appellant-accused. At the time of incident, there was 2 CRA-4104-2021 darkness. She told the name of appellant-accused to the Investigating Officer on the information of villagers. Other witnesses did not support the case of prosecution. Sentence of the appellant-accused has been suspended by the learned Court below till 05.08.2021 and has been released on bail and the said period is extended by this Court till 05.10.2021. There are material contradictions and omissions in the evidence of witnesses. This appeal is of

the year 2021. It is the time of COVID-19 pandemic, due to this final hearing of this appeal will take considerable time for its final disposal. There is fair chance to succeed in the appeal. Under these circumstances, if the sentence of the appellant/accused 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 for the respondent/State opposes 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 facts that prosecutrix (PW-1) admitted this fact that she did not identify the appellant-accused, at the time of incident, there was darkness, she told the name of appellant- accused to the Investigating Officer on the information of villagers, s entence of the appellant-accused has already been suspended by the

learned Court below, it is the time of COVID-19 pandemic, this appeal is of the year 2018 and final hearing of this appeal will take time, 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 accused/appellant-Hari @ Hariram Kushwaha shall remain suspended during the pendency of this appeal and he shall 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 like amount to the satisfaction of the trial Court for 3 CRA-4104-2021 his appearance before the trial Court on 22.11.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial Court in this regard.

In case, accused/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.

I n view of the outbreak of 'Corona Virus disease (COVID-19)' accused/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 accused/appellant by the jail doctor before his release.

2. Accused/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 accused/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

Pallavi PALLAVI SINHA 2021.09.17 17:13:53 +05'30'