Umakant Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 1504 MP

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      IN THE HIGH COURT OF MADHYA PRADESH
                            AT GWALIOR
                         CRA No. 9746 of 2018
     (UMAKANT SHARMA VS. THE STATE OF MADHYA PRADESH AND OTHERS)


DATED : 25-01-2023
      Shri Sanjay Gupta - Advocate for appellant.
      Shri Rajesh Kumar Shukla - Dy. Advocate General for State.
      Heard on I.A. No.9285/2022, which is third repeat application
under Section 389 of Cr.P.C. moved on behalf of appellant No. 1 -
Umakant Sharma seeking suspension of sentence and grant of bail. His
first application was withdrawn on 20.01.2020 and second application
was dismissed on 30.04.2021.
      Appellant stood convicted under Sections 363, 366-A, 376(2)(i),
376(2)(n) of IPC and under Sections 3(2)(v) and 3(2)(va) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 and sentenced to undergo 3 years RI, 5 years RI, 14 years RI, 14
years RI, Life Imprisonment and 3 years RI respectively with default
stipulation vide judgment of conviction dated 19.11.2018 and order of
sentence dated 22.11.2018 passed by Special Judge, District Bhind in
S.T. No.101/2016.
      Appellant has so far undergone almost 4 years and 11 months jail
incarceration including the period undergone during trial.
      As per prosecution story, a complaint was lodged by the
complainant Suresh (PW-1) on 08.07.2016 that while he was in his
shop, his daughter had disappeared from his house on 06.07.2016.
Despite best efforts, she could not be traced, therefore, a missing report
was lodged. It was also apprehended that the present appellant has
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manipulated her and took her away. She was alleged to be a minor. On
such missing report, the investigation started. However, on the date of
complaint, the accused having seen the complainant had run away
leaving the prosecutrix alone wherefrom she was procured. Upon
collection of incriminating material on record including statements of
the witnesses, Challan was filed and the case was committed to the
Sessions Court for trial. The Sessions Court upon evaluation of
evidence placed on record concluded with conviction and passed the
sentence accordingly.
      Learned counsel for the appellant while taking exception to the
impugned judgment inter alia submits that as regards age, though it is
alleged to be 08.07.2002 and, therefore, on the date of incident, she is
said to be 14 years of age, but there is no evidence on record except
Class 5th marksheet. However, the evidence on record suggest that father
of the prosecutrix, who is fifth pass, has stated that he did not know as
to on what basis, he had given the date of birth of the prosecutrix in the
school. Besides, he also expressed ignorance about many schools where
the prosecutrix is said to have studied. Accordingly, there is infirm
evidence on record to conclude that she was a minor, therefore, it was
not safe to hold that the prosecutrix was minor on the alleged date of
incident. That apart, learned counsel submits that the prosecutrix in her
statement recorded under Section 164 of CrPC stated to have gone on
her own volition with the appellant. In her evidence also, she has stated
to have gone along with the appellant on her own, however, she has
further added that on a false pretext that her mother was indisposed, she
was allured to go along with him. Learned counsel referring to the
medical evidence of Dr. Radha Agrawal (PW-8) submits that it is opined
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by the Doctor that there was no injury on the body of the prosecutrix
and she was habitual of intercourse. Even otherwise, the appellant has
also undergone 4 years, 11 months' jail incarceration. Under such
circumstances, learned counsel for the appellant prays for suspension of
sentence and grant of bail to the appellant.
      Per contra, learned counsel for the respondent/State vehemently

opposed the application supporting the impugned judgment with submission that factum of date of birth is duly proved by the Teacher of the school, wherefrom the marksheet was issued. Hence, no exception can be taken to his evidence. According to Shri Shukla, the Supreme Court has already concluded that if the date of birth has been provided by the parents at a distance of time, then the question as regards inexistence of source of information cannot be raised, therefore, she was a minor. Even if she had consented to accompany the appellant and stayed with him, that is of no consequence. Hence, no exception can be taken in the matter of suspension of sentence.

Upon hearing the counsel for the parties though this Court refrains from commenting upon rival contentions touching merits of the case, but regard being had to the fact that appellant has already undergone 4 years and 11 months of jail custody and and the appeal is of the year 2018 and there is no likelihood of early hearing of the appeal and in the obtaining facts and circumstances, we deem it proper to extend the benefit of suspension of jail sentence to the appellant.

Accordingly, it is directed that the jail sentence of the appellant shall remain suspended and he be released on bail on his furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in the like amount to the satisfaction of the trial

Court. Appellant is directed to appear before the Registry of this Court on 29/03/2023 and on other subsequent dates as may be fixed in this behalf with following further conditions:-

(i) the concerned jail authorities are directed that before releasing the appellant, the medical examination of the appellant be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the consequential follow up action or any further test required be undertaken immediately. If not, appellant shall be released on bail in terms of the conditions imposed in this order;

(ii) violation of conditions, State is free to apply for cancellation of bail.

Accordingly, I.A. No.9285/2022 stands allowed and disposed of.

Observations on facts, if any, are only for the purpose of deciding the instant I.A. and shall have no bearing on the merits of the appeal.

Certified copy as per rules.

          (ROHIT ARYA)                                 (SATYENDRA KUMAR SINGH)
             JUDGE                                             JUDGE

Abhi
Digitally signed by
ABHISHEK CHATURVEDI
Date: 2023.01.25 17:10:17
+05'30'