Madhya Pradesh High Court
Mukesh Kumar Gupta vs The State Of Madhya Pradesh on 22 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-2656-2020
The High Court Of Madhya Pradesh
CRA-2656-2020
(MUKESH KUMAR GUPTA Vs THE STATE OF MADHYA PRADESH)
11
Jabalpur, Dated : 22-09-2021
Heard through Video Conferencing.
Shri Manoj Kumar Mishra, Advocate for the appellant.
Shri Dhirendra Singh, PL for the respondent-State.
Appeal is already admitted for final hearing.
Also heard on I.A. No. 6191/2021 third application for suspension
of execution of sentence awarded to the appellant and grant of bail. First
application was dismissed as withdrawn with liberty to file after some
time vide order dated 30.06.2020. Second application was dismissed as
withdrawn vide order dated 07.01.2021.
The appeal has been preferred under Section 374(2) of the Cr.P.C.,
1973 b y the appellant/accused against judgment dated 06.03.2020 in
Special Sessions Case No. 71/2016 passed by learned Special Judge,
(POCSO Act) Chhatarpur Distt.-Chhatarpur (M.P.), whereby the
appellant has been convicted for the offence punishable under Section
9(dha)/ 10 of POCSO Act and has been sentenced to undergo R.I. for 5
years with a fine of Rs. 1,000/- and Section 342 of I.P.C. and has been
sentenced to undergo R.I. for 1 year with a fine of Rs.1000/-, with default
stipulation respectively.
As per prosecution case, on 21.01.2015 at about 4:30 pm ,
complainant had gone to open account in the Bank. Prosecutrix PW/3
aged 5 years is her daughter. She was playing in front of her house. At
that time appellant-accused took her in his house and closed the door and
disrobed her under garment and he lay upon her, after some time her aunt
has opened the door. The prosecutrix disclosed all the incident to her
Signature Not Verified
mother.
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.22 17:29:41 IST
2 CRA-2656-2020
Learned counsel for the appellant submits that learned trial court
has committed grave error in convicting and sentencing the appellant-
accused. Learned trial court did not appreciate the evidence in
prospective way. It is proved that at the time of incidence there is old
enmity between the party, due to this appellant-accused has falsely been
implicated in this case. Almost witnesses admitted this fact that there is
enmity between the parties. Prosecutrix PW/3 is tutored witness, she
admitted this fact that she is advised by her mother to allege such type of
incident against the present appellant-accused. It is admitted fact that
prosecutrix disclosed the incident to her mother immediately but FIR was
lodged on 25.01.2015 about 4 days delay. Father of the prosecutrix
admitted this fact that on the date of incident, her wife disclosed all the
incident due to this inordinate delay to lodge the FIR. During the trial
appellant-accused was on bail. Appellant/accused is in custody since
06.03.2020 till now, during trial he remained in jail about 1 month, so
he has served almost 1 year 6 months jail sentence out of 5 years. This
appeal is of the year 2020. It is the time of COVID-19 pandemic, due to
which final hearing of this appeal will take time. There is every
possibility to succeed in this appeal. Under these circumstances, if the
execution of jail 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 its rejection.
Having considered the arguments advanced by learned counsel for
the parties and this fact that prosecutrix PW/3 herself admitted this fact
that she is advised by her mother to allege such type of incident against
the present appellant-accused, appellant-accused did not take her in his
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house, it is alleged by the prosecution that prosecutrix disclosed the
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.22 17:29:41 IST
3 CRA-2656-2020
incident immediately to her mother but FIR was lodged with a delay of 4
days, appellant-accused is in custody since 06.03.2020 till now, during
trial he remained in jail about 1 month, so he has served almost 1 year 6
months jail sentence out of 5 years, this appeal is of the 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-Mukesh
Kumar Gupta 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 10.11.2021 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.
Signature Not Verified
SAN
3 . If it is found that the appellant is suffering from 'Corona Virus
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.22 17:29:41 IST
4 CRA-2656-2020
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
MISHRA
Signature Not Verified
SAN
Digitally signed by ARVIND KUMAR
MISHRA
Date: 2021.09.22 17:29:41 IST
