Arvind and Another vs State Of M.P

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by

the Government of India, this appeal has been heard and decided through video conferencing to maintain social distancing. The parties are being

represented by the respective counsels through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

Heard on I.A.No.9373/2020, first application under Section 389 (1) of Cr.P.C for suspension of jail sentence and grant of bail on behalf of the

appellant No.2 Om Prakash @ Omi.

This criminal appeal under Section 374 of Cr.P.C has been filed by the appellant against the judgment of the trial Court order dated 03.12.2019 passed

in Special Case No.100/2016 by the Second Additional District Judge, Shivpuri, whereby the appellant No.2 has been convicted under Sections 376 (2)

(I) read with Section 120 of IPC and sentenced to suffer 10 years RI with a fine of Rs.3000/- and default of payment of fine further imprisonment of

one year RI. He has been further convicted under Section 342 of IPC and sentenced to suffer one year R.I..

It is submitted by the counsel for the appellants that as per prosecution story, complainant lodged FIR on 29.08.2016 against the present appellants at

Police Station Pohri, District Shivpuri regarding the incident before one month and offence registered under Sections 376, 342, 506/34 of IPC. The

prosecutrix stated that she was 15 years old. When she went to toilet at 4:30 am, suddenly both the appellants came and brought her in the house of

Sarpanch and committed rape over her and told her that if she informs anyone, they will kill her parents. It is further submitted that the trial Court has

erred in not acquitting the appellant No.2 while looking to the evidence and the witnesses, the appellant should have been acquitted. Ten witnesses

have been examined. The statements of the witnesses are very much contrary to each other. The prosecutrix and her parents filed the compromise

application before the trial Court, but the trial Court ignored the compromise application and convicted the appellants. The prosecutrix accepted her

court's statement that she is more than 18 years at the time of incident. It is further submitted that sentence of the appellant No.1 Arvind has been

suspended by this Court vide order dated 01.06.2020. It is also submitted that the incident was registered after 40 days without there being proper

explanation of the same. The specimen of vaginal slide was taken after 40 days of the incident and the report shows presence of sperm on the slide,

whereas the doctor has clearly opined that presence of specimen can only last for 72 hours form the time of commission of offence and it is

inappropriate that presence of specimen was found on the slide after 40 days for the incident. The case of the appellant is in total parity with the co-

accused Arvind. Under these circumstances, counsel for the appellant prays for suspension of jail sentence and grant of bail.

Per contra, learned Panel Lawyer for the State could not dispute the factum of parity.

The Hon'ble Supreme by order dated 23.03.2020 passed in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU

W.P. (C) No.1/2020 has directed all the States to constitute a High Level Committee to consider the release of prisoners in order to decongest the

prisons. The Supreme Court has observed as under :-

“The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID â€" 19).

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the

prisons is controlled. We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal

Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class

of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider

the release of prisoners who have been convicted or are under trial for offences for which prescribed punishment is up to 7 years or less, with or without fine and

the prisoner has been convicted for a lesser number of years than the maximum.

It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending

upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing

trial or any other relevant factor, which the Committee may consider appropriate.â€​

Considering the overall facts and circumstances of the case and also the fact that sentence of the appellant No.1 Arvind has been suspended by this

Court and considering the directions issued by the Hon'ble Supreme Court, this Court deems it appropriate to consider the application for grant of

bail and suspension of jail sentence.

Accordingly, application for suspension of jail sentence is allowed. Thea ppellant No.2 Om Prakash @ Omi is directed to be

released by suspending his sentence furnishing a personal bail bond of Rs.50,000/- (Rs. Fifty Thousand Only) with one solvent surety of the

same amount to the satisfaction of trial Court. The appellant is directed to appear before the Principal Registrar of this Registry for his presence on

21.12.2020 and thereafter, subsequent dates as may be fixed by the Registry from time to time till disposal of the appeal.

The appellant No.2 shall install Arogya Setu App in his mobile immediately and would intimate his place of residence to the SHO of concerned

Police Station; where he resides. Appellant further submit the undertaking to the effect that he will abide by the terms and conditions of different

circulars, orders as well as guidelines issued by Central Government, State Government as well as Local Administration for maintaining social

distancing, hygiene etc to avoid Novel Corona Virus (COVIC-19) pandemic.

In view of the COVID-19, jail authorities are directed that before releasing the appellant, medical examination of appellant shall be undertaken by the

jail doctor and on prima facie, if it is found that he is having the symptoms of COVID-19, then consequential follow up action including the

isolation/quarantine or any test if required, be ensured, otherwise appellant shall be released immediately on bail and shall be given a pass or permit for

movement to reach his place of residence.

E- copy of this order be provided to the appellant and E-copy of this order be sent to the trial Court concerned for compliance. It is made clear that E-

copy of this order shall be treated as certified copy for practical purposes in respect of this order.

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