Mahendra vs The State Of Madhya Pradesh
2021 Latest Caselaw 6177 MP

                                  1                                CRA-1265-2015
        The High Court Of Madhya Pradesh
                   CRA-1265-2015
              (MAHENDRA AND OTHERS Vs THE STATE OF MADHYA PRADESH)

29
Jabalpur, Dated : 29-09-2021
      Heard through Video Conferencing.
      Shri D.K. Singh, Advocate for appellants.
      Ms. Seema Jaiswal, P.L. for respondent-State.

Shri Ramanuj Choubey, Advocate for the objector.

Heard on I.A. No. 15978/2021 sixth application for suspension of

execution of sentence awarded to the appellant no. 1 Mahendra. First application was dismissed as withdrawn with liberty to revive the prayer after the material change of circumstances vide order dated 03.05.2016. Second & third applications of the appellant Mahendra was dismissed on merit vide order dated 16.01.2017 & 07.12.2018. Forth application was dismissed for want of prosecution vide order dated 24.07.2019 and fifth application was dismissed as withdrawn with liberty to renew his prayer for suspension of jail sentence after serving seven years of jail sentence vide order dated 26.08.2021.

The appeal has been preferred under Section 374(2) of the Cr.P.C., 1973 by the appellant/accused against judgment dated 30.04.2015 in S.T. No. 122/2014 passed by learned First Additional Session Judge, Sehore, Distt.- Sehore (M.P.), whereby the appellant stands convicted under Section 376 (2)

(n) of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and fine in the sum of Rs.1,00,00/-, Section 4 of Dowry Prohibition Act, and sentenced to undergo rigorous imprisonment for 6 months and fine in the sum of Rs.10,000/- with default stipulation respectively.

Prosecution case, in short, is that on 26.04.2014, prosecutrix aged 23 years submitted a written report In-charge Police Station Mandi, District Sehore. It is alleged by her that engagement of prosecutrix and appellant- accused No. 1 was performed, thereafter on 03.08.2010, appellant-accused 2 CRA-1265-2015 and other co-accused took her at Ujjain, They stayed in Parmar Society Dharmashal. Appellant No. 1 Mahendra Parmar committed intercourse with her putting her in fear to break the engagement, thereafter time to time appellant-accused No. 1 committed intercourse with her and lastly on 21.04.2013 he committed intercourse with her. Thereafter, appellant no. 1 and other co-accused demanded Rs. 2,00,000/- cash, motor cycle and other

articles as dowry. Due to fulfillment of dowry demand, appellant no. 1- accused refused to marry with her.

Learned counsel for the appellant submits that previous two applications were dismissed on merits and last application was dismissed as withdrawn with liberty to renew his prayer for suspension of sentence after serving seven years sentence out of 10 years by the appellant no. 1. Appellant-accused has served 8 years 4 months jail sentence with remission out of 10 years. This appeal is of the year 2015, so there is no probability of this appeal being heard on merit in recent future, due to COVID-19. Apart from this previously this court did not consider the fact that parents of the prosecutrix themselves broken the marriage due to some demand. When the marriage of appellant was performed with another girl, then he has falsely implicated in this case. Appellant -accused produced Mohanlal DW/1 is the relative of both parties. He deposed before the trial court that the family members of the appellant-accused No. 1 tried to solemnize marriage of appellant No.1 with prosecutrix but the father of the prosecutrix refused to marry with appellant-accused no. 1 then appellant-accused No. 1 performed the marriage with another girl. This piece of evidence did not challenge by the prosecution in his cross-examination, so there is every possibility to get success in this appeal. Prosecutrix is educated lady, so it is a case of consensual sex between both the parties. there are material contradictions and omissions in the evidence of the prosecution witnesses. Appellant/accused is in custody since 30.04.2015. This appeal is of the year 2015. It is the time of COVID-19 Pandemic due to which final hearing of this 3 CRA-1265-2015 appeal will take time. 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.

O n the other hand, learned Panel Lawyer for the respondent-State opposes the submission of appellant's counsel and prays for its rejection.

Learned counsel for objector submits that earlier two applications were dismissed on merits, so there is no change of circumstances, appellant- accused is not entitled for grant of suspension.

Hearing arguments advanced by learned counsel for the parties and this fact that appellant no. 1. appellant-accused has served 8 years 4 months jail

sentence with remission out of 10 years, this appeal is of the year 2015, it is the time of COVID-19, Pandemic, due to which final hearing of this appeal will take time, apart from this, Mohanlal DW/1 is the relative of both parties, he deposed before the trial court that the family members of the appellant- accused No. 1 tried to solemnize marriage of appellant No.1 with prosecutrix for three years, but father of the prosecutrix refused to marry with appellant- accused no. 1 then appellant-accused No. 1 performed the marriage with another girl, so 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 No. 1 Mahendra 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 20.12.2021 and thereafter on all other such subsequent dates, as may be fixed by the trial Court in this regard.

I n 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 4 CRA-1265-2015 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 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

ARVIND KUMAR MISHRA 2021.10.04 17:36:49 +05'30'