Madhya Pradesh High Court
Nana vs The State Of Madhya Pradesh on 18 March, 2021
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
1 CRA-1060-2020
The High Court Of Madhya Pradesh
CRA-1060-2020
(NANA Vs THE STATE OF MADHYA PRADESH)
10
Jabalpur, Dated : 18-03-2021
Shri Amit Dubey, Advocate for the appellant.
Shri Yogendra Das Yadav, Govt. Advocate for the respondent- State.
Record of the Court below is available.
This appeal has already been admitted for final hearing on 10.9.2020. Heard on I.A.No.8770/20, an application for suspension of execution of jail sentence and grant of bail to the appellant, under section 389 (1) of Cr.P.C. for suspension of his jail sentence awarded by the Court of I Addl. Sessions Judge, Nasrullaganj, District Sehore (MP), in S.T. No.93/2016 vide it s judgment dated 30.12.2019, convicting the appellant/accused under Ssections 363 & 366 of the IPC and sentenced him to undergo RI for 3 years with fine of Rs.1,000/-, with default stipulation, on each count, Section 376(2) (Dha) of IPC, he is sentenced to undergo R.I. for 10 years, with fine of Rs.2,000/- with default stipulation, Section 344 of IPC he is sentenced to undergo R.I. for 1 year with fine of Rs.200/- with default stipulation and Section 6 of POCSO Act, he is sentenced to undergo R.I. for 10 years with fine of Rs.200/- with default stipulation, as mentioned in the impugned judgment.
A s per prosecution case, on 27.8.2016, prosecutrix aged about 14 years was missing from her house. She was searched, but she was not found. Thereafter, her father lodged the report vide Ex.P/1. Therafter, prosecutrix was recovered from the possession of present accused/appellant on 5.8.2016 vide Ex.P/2. Prosecutrix stated that present accused/appellant kidnapped her, took her at forest and committed intercourse with her.
L e a r n e d counsel for the appellant/accused submits that accused/appellant remained in jail during trial from 5.9.2016 to 17.1.2018 and Signature Not he is in custody since 30.12.2019 to till now. Learned trial Court did not SAN Verified Digitally signed by ASHWANI PRAJAPATI Date: 2021.03.18 17:37:57 IST 2 CRA-1060-2020 appreciate the evidence with regard to the age of prosecutrix in proper way. Prosecution was failed to prove the age of prosecutrix. At the time of incident, prosecutrix was above 18 years. Prosecution produced Jagdish Das Bairagi (PW/6), who is the Principal of Govt. High School Baibodi. He produced scholar register vide Ex.P/8, in which it is mentioned that date of birth of prosecutrix is 10.1.2003, but Jagdish Das Bairagi (PW/6) admitted in his cross-examination that there is correction in the date of birth mentioned in the scholar register, so the evidence of Jagdish Das Bairagi (PW/6) is not reliable. No other evidence is available on record on which it can be said that prosecutrix was below 18 years. Apart from this, it is proved that prosecutrix had gone with one Muhabbat Singh. Prosecutrix loved Muhabbat and she has solemnized marriage with Muhabbat. Prosecutrix (PW/2) admitted this fact that she had gone with Muhabbat, who took her at Khivni. Police official recovered prosecutrix from Khivni, so it appears from the evidence of prosecutrix (PW/2) that present accused/appellant has been falsely implicated in this case to save said Muhabbat. Father of prosecutrix (PW/1) also admitted this fact that prosecutrix had gone with Muhabbat. Prosecutrix was residing with Muhabbat for about 5-6 days. Accused/appellant produced the mother of prosecutrix as DW/1, who deposed before the trial Court that prosecutrix (PW/1) is aged about 22 years. Prosecutrix had gone with Muhabbat Singh and she solemnized marriage with Muhabbat. So, prosecutrix is residing as wife with Muhabbat Singh. This appeal is of year 2020 and trial will take time to conclude the same. DNA report is not available in this case. There are material contradictions and omissions in the statement of the witnesses. There is fair chance to succeed in the appeal. There is no likelihood of his absconding and tampering with the evidence. Under the circumstances, if the 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 of present accused/ appellant.
Learned Govt. Advocate has opposed the application and prayed for Signature SAN Not Verified Digitally signed by ASHWANI PRAJAPATI Date: 2021.03.18 17:37:57 IST 3 CRA-1060-2020 its rejection.
Having considered the arguments advanced by learned counsel for the parties, on perusal of the record and the fact that age of prosecutrix is disputed, prosecutrix solemnized marriage with one Muhabbat Singh, she was residing with Muhabbat Singh, it appears that prosecutrix had gone with Muhabbat Singh, accused/appellant remained in jail during trial from 5.9.2016 to 17.1.2018 and he is in custody since 30.12.2019 to till now, DNA report is not available in this case, no semen is found on the slides of prosecutrix, this appeal is of year 2020, final hearing of this appeal will take time, but without commenting anything on the merit 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-Nana 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 amount of Rs. 50,000/- to the satisfaction of the trial Court for his appearance before the trial court on 15.6.2021 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 without referring the matter to this Court, provided the Registry of this Court is kept informed.
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 Signature SAN Not Verified Digitally signed by ASHWANI PRAJAPATI Date: 2021.03.18 17:37:57 IST 4 CRA-1060-2020 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 A.Praj.
Signature SAN Not Verified Digitally signed by ASHWANI PRAJAPATI Date: 2021.03.18 17:37:57 IST