Madhya Pradesh High Court
Ashok Kumar Jaiswal vs The State Of Madhya Pradesh on 4 December, 2018
1 CRA-3832-2017
The High Court Of Madhya Pradesh
CRA-3832-2017
(ASHOK KUMAR JAISWAL Vs THE STATE OF MADHYA PRADESH)
15
Jabalpur, Dated : 04-12-2018
Shri Anurag Shivhare, Advocate for the appellant.
Shri Geetesh Thakur, PP for the respondent-State.
Record has been received.
Heard on the question of admission.
Admit.
Also, heard on I.A.No.18435/2017 filed by the appellant / accused under section 389 (1) of Cr.P.C. for suspension of his jail sentence awarded by the Court of Special Judge under the Protection of Children from Sexual Offences Act (POCSO ACt) 2012 in Special Session Trial No.34/14 vide its judgment dated 12.9.2017 convicting the appellant / accused under sections 363, 366 of the IPC and under Section 6 of the POCSO Act and sentencing him to undergo RI for 3 years along with fine of Rs.1000/-, RI for 4 years along with fine of Rs.2000/- and RI for 10 years along with fine of Rs.10,000/- respectively, with default stipulation as mentioned in the impugned judgment.
It is submitted that the appellant is innocent. He is in custody since 12.9.2017 and during trial he has remained in custody from 10.7.2014 to 27.11.2014 and disposal of the appeal will take time. There is a fair chance to succeed in the appeal. It is further submitted that it is a case of consensual sexual intercourse. So far as the age of the prosecutrix is concerned, learned trial Court has placed reliance on the medical evidence in which Dr. Vimla (PW-7) has stated that age of the prosecutrix was 16 to 17 years and further stated that there will be margin of error of two years on both side but the learned trial court has not accepted this statement and considered the age of the prosecutrix below 18 years. While under the Juvenile Justice (Care and Protection) Act, one year of margin of error on both side has been accepted. If the same is considered the age of the prosecutrix may be above 18 years. Looking to the aforesaid nature of the evidence, if the sentence of the appellant is not suspended, his right to file appeal will be futile. Hence, prayer is made for suspension of his jail sentence and grant of bail.
Learned PP has opposed the application and prayed for its rejection. Having considered the arguments advanced by learned counsel for the parties and looking to the other facts and circumstances of the case and the evidence available on record, this application is allowed. It is ordered that subject to payment of fine amount, if not already deposited, the execution of jail sentence of the appellant Ashok Kumar Jaiswal 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/- with one surety in the like amount to the satisfaction of the trial Court for his appearance before the trial court on 12.4.2019 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 Digitally signed by JITENDRA KUMAR PAROUHA Date: 05/12/2018 17:56:21 2 CRA-3832-2017 the matter to this Court, provided the Registry of this Court is kept informed.
The appeal be listed for final hearing in due course as per listing policy. C.C. as per rules.
(J. P. GUPTA) JUDGE JP Digitally signed by JITENDRA KUMAR PAROUHA Date: 05/12/2018 17:56:21