Sarman Patel vs The State Of Madhya Pradesh
2021 Latest Caselaw 6253 MP

                                      1                           CRA-3246-2021
       The High Court Of Madhya Pradesh
                  CRA-3246-2021
                  (SARMAN PATEL Vs THE STATE OF MADHYA PRADESH)

3
Jabalpur, Dated : 30-09-2021
      Heard through Video Conferencing.

      Shri Vipin Mishra, Advocate for appellant.
      Shri Dinesh Patel, P.L. for respondent-State.

Heard on I.A. No. 9496/2021 first application for suspension of execution of sentence awarded to the appellant and grant of bail.

The appeal has been preferred under Section 374(2) of the Cr.P.C., 1973 by the appellant/accused against judgment dated 06.04.2021 in S.T. No. 2700151/2016 passed by learned Special Judge, O.A.W.Offences, Katni Distt.-Katni (M.P.), whereby the appellant stands convicted under Section 450 of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and fine in the sum of Rs.1000/-, Section 376(2)(Dha) of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and fine in the sum of Rs. 5000/-, with default

stipulation respectively.

Prosecution case, in short, is that on 24.06.2016 at about 11:00 pm, prosecutrix was alone in her house, husband of the prosecutrix was gone to attend the call of nature, at that time appellant-accused reached there, he demanded water from the prosecutrix, when the prosecutrix gave water, he caught hold of her hands and thrown her and had committed rape with her.

Learned counsel for the appellant submits that learned trial Court committed grave error to convict and sentence to the appellant/accused. Learned trial Court did not appreciate the evidence in prospective way. There is enmity between family members of prosecutrix and appellant- accused. Prosecutrix already lodged two reports, offence has been 2 CRA-3246-2021 registered against the appellant-accused. Appellant-accused has acquitted in those cases. Appellant-accused produced copy of judgments in this regard. It is admitted fact that prosecutrix is a married lady aged 24 years, when appellant-accused has some enmity with the prosecutrix and her family members, so this question is not arise that in the night

appellant-accused will come at her house and demanded water. It is also appears from the statement of the witnesses that other family members are residing adjoining the house of prosecutrix but no family members reached on the spot when appellant-accused was committed intercourse with her. Husband of the prosecutrix admitted this fact that his all seven brothers are residing together in a mansion. Prosecutrix was examined by a doctor but no injury is found on the body of the prosecutrix, no sign of resistance is found on the spot. DNA is not available on record, FIR was lodged with a delay of 9 days, so it is a case of false implication. There are material contradictions and omissions in the evidence of the prosecuti on witnesses. Appellant/accused is in custody since 06.04.2021. During trial he was in jail from 04.07.2016 to 16.08.2016. This appeal is of the year 2021. 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.

Hearing arguments advanced by learned counsel for the parties and this fact that prosecutrix is a married lady of 24 years, she was examined by a doctor but no injury is found on the body of the prosecutrix, no sign of resistance is found on the spot, all seven brothers of husband of the 3 CRA-3246-2021 prosecutrix were residing together in a mansion, there was enmity between both the party, FIR was lodged with a delay of 9 days, appellant/accused is in custody since 06.04.2021. During trial he was in jail from 04.07.2016 to 16.08.2016, this appeal is of the year 2021, it is the time of COVID-19, Pandemic, due t o 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-Sarman Patel 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.

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.

3 . If it is found that the appellant is suffering from 'Corona Virus 4 CRA-3246-2021 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 17:59:24 +05'30'