Madhya Pradesh High Court
Ganesh Yadav vs The State Of Madhya Pradesh on 27 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-2788-2017
The High Court Of Madhya Pradesh
CRA-2788-2017
(GANESH YADAV Vs THE STATE OF MADHYA PRADESH)
17
Jabalpur, Dated : 27-09-2021
Heard through Video Conferencing.
Shri Pradeep Naveria, Advocate for the appellant.
Ms. Hemlata Kshatriya, 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.15744/2021, which is repeat (second) 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
SC/ST, Singrouli Session Division Waidhan, District Singrouli (MP), in
S.T.No.3/2016, vide its judgment dated 11.5.2017, convicting the
appellant/accused under Sections 376(1) of IPC and Sections 3 & 4 of
POCSO Act and sentenced him to undergo RI for 10 years with fine of
Rs.15,000/-, with default stipulation on each count, as mentioned in the
impugned judgment. Earlier application being I.A.No.11844/2018 was
dismissed as withdrawn by order dated 20.11.2018.
A s per prosecution case, on 2.12.2015, prosecutrix below 18 years,
lodged the report. It is alleged that she is married lady. Her husband had
gone for labourship at Himachal State. She was residing with her parents.
She was doing work of labourship. On 29.11.2015. Co-accused Chhotu @
Gulabuddin met her. He proposed to see video film. She went with co-
accused Chhotu @ Gulabuddin to the video house. Thereafter, co-
accused/appellant took her at Camp (Dera). Thereafter, present
accused/appellant came there. Prosecutrix was alone in the room. Present
accused/appellant slept in that room and during night he committed
intercourse without her consent. Thereafter, accused/appellant went to take
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SAN
some food. In the meanwhile, other co-accused Ravi Nauwa reached there,
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.29 17:48:00 IST
2 CRA-2788-2017
he threatened the prosecutrix and committed intercourse with her. Next
morning, prosecutrix went to her parental house, she disclosed all the incident
and her parents 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 proper perspective way.
It is not proved that at the time of incident, prosecutrix was below 18 years.
Although, prosecution produced Sangamlal (PW/9). He deposed before the
trial Court that date of birth of prosecutrix is 20.7.1999. He produced
admission register vide Ex.P/11, but he was unable to disclosed the date of
information of birth of prosecutrix. Her parents did not disclose the date of
birth of birth of prosecutrix, so learned trial Court itself did not believe the
evidence of Sangamlal (PW/9). Learned trial Court determined the age of
prosecutrix on the basis of bone ossification test which is conducted by Dr.
Vimla Khes (PW/4) Dr. Vimla Khes (PW/9) determined the age of
prosecutrix as 16-17 years, so the age of prosecutrix may be above 18 years.
Apart from this, accused/appellant did not commit intercourse with
prosecutrix. Accused/appellant is conductor. Prosecutrix did not pay the
fare of the bus and due to this some dispute arose there, therefore, he has
been falsely implicated. She voluntarily went with accused/appellant in the
house. At the time of intercourse, she did not raise any objection. During
trial, accused/appellant remained in custody since 6.12.2015 to 11.5.2017 and
at present he is in jail since 11.5.2017, so he has served more than half of his
jail sentence out of 10 years. This appeal is of year 2017. 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,
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Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.29 17:48:00 IST
3 CRA-2788-2017
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 it is true that age of
prosecutrix is disputed, but prosecutrix disclosed that the accused/appellant
committed intercourse with her without her consent. Prima facie this piece of
evidence cannot be disbelieved. Although, accused/appellant remained in jail
from 6.12.2015 to 11.5.2017 and at present he is in jail from 11.5.2017 till
date, but this is not a fit case to suspend the execution of jail sentence and
grant bail to the accused/appellant.
Accordingly, I.A.No.15744/2021 is dismissed with liberty to renew
his prayer after serving 7 years out of 10 years of his jail sentence.
List this matter for final hearing along with Cr.A.No.2328/2017.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2021.09.29 17:48:00 IST
