Madhya Pradesh High Court
Nawal @ Naman @ Kamal vs The State Of Madhya Pradesh on 30 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-2870-2021
The High Court Of Madhya Pradesh
CRA-2870-2021
(NAWAL @ NAMAN @ KAMAL Vs THE STATE OF MADHYA PRADESH)
4
Jabalpur, Dated : 30-09-2021
Heard through Video Conferencing.
Shri Ashutosh Joshi, Advocate for the appellant.
Shri Anoop Sonkar, P.L. for the respondent/State.
Record of the trial Court has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Heard on I.A. No.6791/2021 an application (first) for suspension
of execution of sentence awarded to the appellant and grant of bail.
Vid e judgment dated 22.11.2019 in Special Case No. 200066/2014
passed by learned Special Judge (POCSO Act), Link Court, Harsud, Distt.-
Khandwa, M.P., the appellant has been convicted for the offence punishable
under Section 376(2) of IPC and has been sentenced to undergo R.I. for 10
years with a fine of 1,000/-, Section 363 of IPC and has been sentenced to
undergo R.I. for 3 years with a fine of Rs.300/- and Section 366 of IPC and
has been sentenced to undergo R.I. for 3 years with a fine of Rs.300/- with
default stipulation in each.
As per prosecution case, on dated 03.04.2014, prosecturix aged 16
years 6 months was missing from her house. She was searched but not
found. FIR was lodged. On dated 07.04.2014, prosecturix was
recovered. It is alleged by the prosecution that appellant-accused
kidnapped prosecutrix and kept her in a house. Thereafter, he committed
intercourse with her.
Learned counsel for the appellant submits that learned Trial Court
ha s committed grave error to convict and sentence to the appellant-
Signature Not Verified
accused. Learned Trial Court did not appreciate the evidence in
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.09.30 18:35:59 IST
2 CRA-2870-2021
perspective way. It is not proved beyond resonable doubt that at the time
of incident, priosecutrix was below 18 years. Munshi Patil (PW-11) is
Principal of Primary School, Indracolony, Mirikheda (Namapur). He
deposed before the trial Court that the date of birth of prosecutrix is
15.08.1997. But he admitted this fact that at the time of admission of
prosecutrix in the school, he was not posted at that school. He has no
knowledge what is the source of date of brith of prosecutrix. Kisan (PW-
1) is father of the prosecutrix. He did not disclose the date of birth of
prosecutrix. He also admitted this fact that at the time of admission, the
date of birth of prosecutrix is entered in the Admission Register on the
basis of estimation. No document is available on the record in regards of
date of birth of the prosecutrix. So, prosecutrix might be above 18 years
at the time of incident. Prosecutrix and appellant-accused loved each
other but their parents were not ready to accept their relation so
prosecutrix was pressurized to give false statement against the appellant-
accused. Prosecutrix (PW-2) admitted in her cross-examination that
appellant-accused and prosecutrix wanted to solemnize marriage with
each other but parents of both parties were not ready so it cannot be said
that appellant-accused was not ready to solemnize marriage with
prosecutrix. Apart from this, there are material contradiction and omission
in the evidence of the prosecution witnesses. Appellant is in jail since
22.11.2019 and during trial he remained in jail from 08.04.2014 to 02.05.2015.
This appeal is of year 2021. It is the time of COVID-19 due to which final
hearing of this appeal will take time. There is every possibility to succeed in
this appeal. There is no likelihood of his absconding and tampering with the
evidence. Under the circumstances, if the execution of 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
Signature Not Verified
appellant-accused.
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.09.30 18:35:59 IST
3 CRA-2870-2021
On the other hand, learned Panel Lawyer for the respondent-State
opposes the submission of appellant's counsel and prays for rejection of
application.
Heard and perused the record.
Having considered the arguments advanced by learned counsel for
the parties and evidence of the case it appears that age of prosecutrix is
disputed, prosecutrix herself admitted this fact that appellant-accused and
prosecutrix wanted to solemnize marriage with each other but the parents
of both parties were not ready for the same, appellant accused is in jail
since 22.11.2019 and during trial he remained in jail from 08.04.2014 to
02.05.2015, this appeal is of year 2021, 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-Nawal @
Naman @ Kamal 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 29.11.2021 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
Signature Not Verified
in suo moto W.P.No.1/2020, it would be appropriate to issue the
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.09.30 18:35:59 IST
4 CRA-2870-2021
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
Pallavi
Signature Not Verified
SAN
Digitally signed by PALLAVI SINHA
Date: 2021.09.30 18:35:59 IST
