Madhya Pradesh High Court
Anap Korku vs The State Of Madhya Pradesh on 20 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-2691-2020
The High Court Of Madhya Pradesh
CRA-2691-2020
(ANAP KORKU Vs THE STATE OF MADHYA PRADESH)
5
Jabalpur, Dated : 20-09-2021
Heard through Video Conferencing.
Shri Ashish Sinha, Advocate for the appellant.
Shri Santosh Yadav, P.L. for the respondent/State.
Record of the trial Court has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Heard on I.A. No.4336/2021 an application (second) for
suspension of execution of sentence awarded to the appellant and grant of
bail. The first was dismissed as withdrawn with the liberty to file a fresh
application after six months from the order dated 27.06.2020 by the co-
ordinate Bench of this Court.
Vide judgment dated 28.02.2020 in S.T. No.70/2019 passed by learned
3rd ASJ, Sehore, M.P., the appellant has been convicted for the offence
punishable under Section 377 of IPC and has been sentenced to undergo R.I.
for 10 years with a fine of Rs.2,000/- and Section 5(m)/6 of POCSO Act and
sentenced to undergo R.I. for 10 years 5 years with a fine of Rs.2,000/- with
default stipulation in each.
As per prosecution case, on dated 04.06.2019, appellant-accused
has committed Carnal intercourse with victim PW-1, aged about 5 years.
Learned counsel for the appellant submits that learned Trial Court
ha s committed grave error to convict and sentence to the appellant-
accused. Learned Trial Court did not appreciate the evidence in
perspective way. There is old enmity between both the parties. Gajraj
(PW-2) and Kalawati (PW-3) admitted in their cross-examination that a
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criminal case under Section 376 of IPC was registered against the father
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Date: 2021.09.22 10:53:39 IST
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of the victim and the father of victim remained in jail about 3 months.
Due to this, mother of victim and other family members were annoyed
with appellant-accused. PW-1 victim admitted in his cross-examination
that one Suresh committed Carnal intercourse with him but Suresh is not
implicated as an accused in this matter. DNA report has been received
vide Ex. P-18 in which it is mentioned that "all the alleles observed in
the male DNA profile on the source of victim Article A (C/8890) were
found different with the male DNA profile observed on the source of
accused Anap Singh Korku article B (C/8891)". So it is proved that
appellant-accused did not commit any offence with the victim PW-1.
There are material contradiction and omission in the evidence of the
prosecution witnesses. Appellant-accused is in jail since 07.06.2019. This
appeal is of year 2020. It is the time of COVID-19 due to which final hearing
of this appeal will take time. There is every possibility to succeed in this
appeal. There is no likelihood of his absconding and tampering with the
evidence. Under the circumstances, if the execution of 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 to the present
appellant-accused.
On the other hand, learned Panel Lawyer for the respondent-State
opposes the submission of appellant's counsel and prays for rejection of
application.
Heard and perused the record.
Having considered the arguments advanced by learned counsel for
the parties and evidence of the case it appears that victim PW-1 himself
admitted this fact that one Suresh has committed Carnal intercourse with
him. During the investigation, Suresh did not implicate as an accused in
this matter. DNA report also shows that "all the alleles observed in the
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male DNA profile on the source of victim Article A (C/8890) were
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3 CRA-2691-2020
found different with the male DNA profile observed on the source of
accused Anap Singh Korku article B (C/8891)". So it is proved that
appellant-accused did not commit any offence with the victim PW-1.
Appellant is in jail since 07.06.2019, this appeal is of year 2020, it is the
time of pandemic COVID-19 due to which final hearing of this appeal
will take time but without commenting anything on the merits 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-Anap Korku
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
same like amount to the satisfaction of the trial court for his appearance
before the learned trial court on 29.11.2021 and thereafter on all other
such subsequent dates, as may be fixed by the trial court in this regard.
In case, the appellant 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.
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 Virus
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disease', necessary steps will be taken by the concerned authority by
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Date: 2021.09.22 10:53:39 IST
4 CRA-2691-2020
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
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Date: 2021.09.22 10:53:39 IST
