Madhya Pradesh High Court
Akshay Chouhan vs The State Of Madhya Pradesh on 30 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-1230-2021
The High Court Of Madhya Pradesh
CRA-1230-2021
(AKSHAY CHOUHAN Vs THE STATE OF MADHYA PRADESH)
6
Jabalpur, Dated : 30-09-2021
Heard through Video Conferencing.
Shri Sanjay Sharma, learned counsel for the appellant.
Shri Sanjeev Singh Parihar, learned P.L. for the respondent/State.
Record of the Court below is available.
Heard on the question of admission.
This appeal is admitted for final hearing.
Also heard on I.A. No.12972/2021, an application for suspension of
sentence and grant of bail to the appellant-Akshay Chouhan.
The appeal has been preferred under Section 374(2) of the
Cr.P.C.,1973 b y the appellant/accused against judgment dated 08.02.2021
passed by learned Special Judge, POCSO Act, Hoshangabad, District-
Hoshangabad (MP) in S.C. No.39/2020, by which the appellant has been
convicted for offence under Section 363 of IPC and has been sentenced to
undergo R.I. for 5 years with fine of Rs. 1,000/-, Section 366 of IPC and has
been sentenced to undergo R.I. for 5 years with fine of Rs. 1,000/-, Section
376(2)(N) of IPC and has been sentenced to undergo R.I. for 10 years with
fine of Rs. 3000/-. Default stipulation has also been imposed by the trial
Court.
Prosecution case, in short, is that on 16.04.2017, prosecutrix, aged
about 16 years, was missing from her house. She was searched but not
found. Then, FIR was lodged. On 26.07.2018, prosecutrix was recovered
from the possession of appellant/accused. It is alleged by the prosecution that
appellant/accused kidnapped the prosecutrix and took her to various places.
Thereafter, appellant/accused committed intercourse with her.
Learned counsel for the appellant/accused submits that learned trial
Signature Not Verified
SAN
Court committed grave error to convict and sentence the appellant/accused.
Digitally signed by LALIT SINGH RANA
Date: 2021.09.30 17:41:39 IST
2 CRA-1230-2021
Learned trial Court did not appreciate the evidence in perspective way. It is
not proved beyond the reasonable doubt that at the time of incident,
prosecutrix was below 18 years. Although, Hariom Yaduwanshi (PW-3)
deposed before the trial Court that date of birth of prosecutrix is 22.02.2001,
he also produced the admission register vide Ex. P-3 and certificate of date of
birth vide Ex. P-4 but he also admitted in his cross-examination that no
document in regard of date of birth is available on the record. Date of birth is
entered at admission register on estimation basis. Parents of prosecutrix did
not disclose the date of birth of prosecutrix. Prosecutrix has been examined
by the doctor. So it is not proved that prosecutrix was below 18 years.
Prosecutrix is consenting party in this matter. Prosecutrix and
appellant/accused love each other. Prosecutrix admitted this fact that
prosecutrix and appellant/accused had solemnized marriage with each other.
So, prosecutrix is wife of appellant/accused. Apart from this, prosecutrix is
residing in the house of appellant/accused. She also filed an affidavit in this
regard. There are material contradictions and omissions in the evidence of
witnesses. This appeal is of the year 2021. There are fair chances to succeed
in the appeal. It is time of COVID-19 pandemic, due to this, final hearing of
this appeal will take time. Therefore, the application filed on behalf of the
appellant may be allowed and the period of his remaining jail sentence may be
suspended further and he may be released on bail.
Learned P.L. for the respondent/State has opposed the application.
Considering the argument of both the parties and evidence and also this
fact that age of prosecutrix is disputed, prosecutrix herself admitted this fact
that she solemnized marriage with appellant/accused, it appears from the
record that prosecutrix is residing in the house of appellant/accused, this
appeal is of the year 2021, it is time of COVID-19 due to this final hearing of
this appeal will take time, but without expressing any opinion on the merits of
the case, I am o f the considered opinion that it would be appropriate to
suspend the execution of jail sentence awarded to the appellant and grant bail
Signature Not Verified
SAN
Digitally signed by LALIT SINGH RANA
Date: 2021.09.30 17:41:39 IST
3 CRA-1230-2021
to him.
Consequently, I.A. No.12972/2021 is allowed subject to deposit of
fine amount, if not already deposited. The custodial sentence awarded to the
appellant shall remain suspended during the pendency of this appeal.
Appellant-Akshay Chouhan be released from custody subject to his
furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty
Thousand Only), with one surety in the like amount, to the satisfaction of the
trial Court. The appellant shall appear and mark his presence before the trial
Court on 17.11.2021 and shall continue to do so on all such future dates, as
may be given by the trial Court in this behalf, during pendency of the matter.
I n view of the outbreak of 'Corona Virus disease (COVID-19)' the
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 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 the matter for final hearing in due course.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
L.R.
Signature Not Verified
SAN
Digitally signed by LALIT SINGH RANA
Date: 2021.09.30 17:41:39 IST
