Santosh vs The State Of Madhya Pradesh
2021 Latest Caselaw 5823 MP

                                                                      1                            CRA-11115-2019
                                            The High Court Of Madhya Pradesh
                                                       CRA-11115-2019
                                                        (SANTOSH Vs THE STATE OF MADHYA PRADESH)

                                    9
                                    Jabalpur, Dated : 22-09-2021
                                           Heard through Video Conferencing.

                                           Shri Sandeep Mahawar, Advocate for the appellant.
                                           Shri Sudhakarmani Patel, Panel Lawyer for the respondent-State.

Shri D.K. Shah, Advocate for the objector.

Record of the Courts below has been received.

Heard on the question of admission.

This appeal is admitted for final hearing.

Also heard on I.A.No.23540/2019, 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 13.11.2019 passed by Special Judge, POCSO Act, Disrict- Khandwa (M.P.) in S.C.No.111/2018 under Section 363 of IPC and has

been sentenced to undergo rigorous imprisonment for 3 years with fine of Rs.1000/-, Section 366 of IPC and has been sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.1000/- and Section 5 L/ 6 of POCSO Act and has been sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.1000/-respectively with default stipulations.

As per prosecution story, on 15.11.2018, prosecutrix is below the age of 18 years was missing from her house. She was searched but thereafter prosecutrix found with the appellant/accused. It is alleged by the prosecution that appellant/accused kidnapped the prosecutrix and committed intercourse with her on the false pretext of marriage. Signature Not Verified SAN Learned counsel for the appellant-accused submits that learned Digitally signed by NITESH PANDEY Date: 2021.09.22 17:32:47 IST 2 CRA-11115-2019 trial Court committed grave error to convict and sentence to the appellant/accused. Learned trial Court did not appreciate the evidence in perspective way. It is not proved that at the time of the incident, prosecutrix was below 18 years. Mantu Biljhariya (P.W.6) is the Principal of Primary School, Sitabedi who deposed before the trial Court

that the date of birth of the prosecutrix is 07.05.2004. He produced the admission register vide Exhibit-P/8 in this regard but he admitted this fact in his cross-examination that at the time of admission, he did not enter the date of birth of the prosecutrix in the admission register, there is no documentary evidence in regard, the date of birth of the prosecutrix is not available on the record, there is some over-writing in vide Exihibit- P/8, the mother of the prosecutrix Ramvati (P.W.2) and the father of the prosecutrix Gendalal (P.W.3) also did not disclose the date of birth of the prosecutrix. Dr. Kiran Verma (P.W.12) examined the prosecutrix, she deposed before the trial Court that she found the secondary sexual character of the prosecutrix were well developed, due to this, it cannot be said that at the time of the incident, prosecutrix was below 18 years. Apart from this, prosecutrix (P.W.1) is a consenting party in this matter. She admitted in her cross-examination that she was residing with appellant/accused on his hut but she did not raise any objection, prosecutrix (P.W.1) voluntarily came to the appellant/accused. Apart from this, there is material contradictions and omissions in the evidence of witnesses. This appeal is of the year 2019. The appellant is in jail since 22.11.2018. So, he has served almost 3 years sentence out of 10 years jail sentence. 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. There is no likelihood of h i s absconding and tampering with the evidence. Under these Signature Not Verified SAN circumstances, if the sentence of the appellant/accused is not suspended, Digitally signed by NITESH PANDEY Date: 2021.09.22 17:32:47 IST 3 CRA-11115-2019 his purpose to file this 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.

Learned counsel for the objector submits that he has no objection to suspend the jail sentence and grant of bail to the appellant/accused.

Having considered the arguments advanced by learned counsel for the parties, on perusal of the record and the fact that the age of the prosecutrix is disputed, she did not raise any objection when she was

residing with the appellant/accused, it appears from the record that prosecturix herself voluntarily came to the appellant/accused, the appellant is in jail since 22.11.2018, appellant/accused has served almost 3 years sentence out of 10 years jail sentence, this appeal is of the year 2019, it is a time of Covid-19 pandemic, due to which 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-Santosh 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 his appearance before the trial Court on 09.11.2021 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.

Signature Not Verified
  SAN




Digitally signed by NITESH PANDEY
Date: 2021.09.22 17:32:47 IST
                                                                         4                            CRA-11115-2019

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

Nitesh

Signature Not Verified SAN

Digitally signed by NITESH PANDEY Date: 2021.09.22 17:32:47 IST