Madhya Pradesh High Court
Kamlesh vs The State Of Madhya Pradesh on 1 September, 2021
Author: Rajendra Kumar Srivastava
1 CRA-6002-2017
The High Court Of Madhya Pradesh
CRA-6002-2017
(KAMLESH Vs THE STATE OF MADHYA PRADESH)
12
Jabalpur, Dated : 01-09-2021
Heard through Video Conferencing.
Ms. Ashmita Mukhopadhyay, Advocate for the appellant.
Shri Dinesh Patel, P.L. for the respondent-State.
None for the complainant.
Record of the trial Court has been received.
Heard on the question of admission.
Appeal is admitted for final hearing.
Heard on I.A. No.5595/2021 an application (third application) for
suspension of execution of sentence awarded to the appellant and grant of
bail. Earlier applications have been dismissed as withdrawn as under:-
I.A. No. 24822/2017 on 24.10.2018
I.A. No. 14075/2019 on dated 19.02.2020.
Vide judgment dated 04.10.2017 in S.T. No. 01/2016 passed by
learned 1nd ASJ, Balaghat, Distt.-Balaghat M.P., the appellant has been
convicted for the offence punishable under Sections 363 of IPC and has
been sentenced to undergo R.I. for 3 years with a fine of Rs. 2,000/-,
Section 366 of IPC and sentenced to undergo R.I. for 7 years with a fine
of Rs. 2,000/-, Section 376(1) of IPC and sentenced to undergo R.I. for
10 years with a fine of Rs. 2,000/- and Section 4 of POCSO Act and has
been sentenced to undergo R.I. for 7 years with a fine of Rs. 2,000/- with
default stipulation in each.
As per prosecution case, on dated 29.10.2015, prosecutrix aged 16
years was missing from her house. She was searched but not found. FIR
was lodged. Thereafter, prosecutrix was recovered on dated 03.11.2015.
It is alleged by the prosecution that appellant-accused took her and
2 CRA-6002-2017
committed intercourse with her.
Learned counsel for the appellant submits that learned Trial Court
ha s committed grave error to convict and sentence to the appellant-
accused. Learned Trial Court did not appreciate the evidence in
perspective way. It is not proved that at the time of incident, prosecutrix
was below 18 years. Smt. Ratnaprabha Meshram (PW-3) deposed before
the trial Court that the date of birth of prosecutrix in the school admission
register is mentioned as 03.08.2000 but he admitted this fact that he has
no knowledge what is the source of information of date of birth of
prosecutrix. Sandeep Pancheswar (PW-4) did not disclose the date of
birth of prosecutrix . So, prosecutrix might be above 18 years at the time
of incident. Date of birth certificate of prosecutrix is also available on
the record in which her date of birth is mentioned as 05.11.1999. Apart
from this, prosecutrix and appellant-accused loved each other. They
solemnized marriage with each other and on dated 19.01.2018,
prosecutrix delivered a child, whose father is appellant-accused.
Prosecutrix PW-1 admitted this fact that she solemnized marriage with
appellant-accused at temple. So, it is evident that prosecutrix is the wife
of appellant-accused. Apart from this, there are material contradictions
and omissions in the evidence of of the prosecution witnesses. During
trial appellant-accused remained in jail from 05.11.2015 to 24.09.2016
and is in custody since 26.09.2017, so he has served almost substantial
jail sentence. This appeal is of year 2017. It is the time of COVID-19 due
to which final hearing of this appeal will take time. There is every
possibility to succeed in this appeal. There is no likelihood of his
absconding and tampering with the evidence. Under the circumstances, if
the execution of 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.
3 CRA-6002-2017
On the other hand, learned Panel Lawyer for the respondent-State
opposes the submission of appellant's counsel and prays for rejection of
application.
Heard and perused the record.
Having considered the arguments advanced by learned counsel for
the parties and evidence of the case it appears that the age of prosecutrix
is disputed, she herself admitted this fact that prosecutrix and appellant-
accused solemnized marriage with each other, appellant-accused has
filed the birth certificate dated 19.01.2018 of the child delivered by the
prosecutrix from which it appears that the appellant is the father of that
child, appellant-accused is in custody since 26.09.2017 and during trial
he remained in jail from 05.11.2015 to 24.09.2016, so he has served
almost substantial jail sentence, this appeal is of year 2017, it is the time
of pandemic COVID-19 due to 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-Kamlesh 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 10.11.2021 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
4 CRA-6002-2017
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
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
Pallavi
PALLAVI SINHA
2021.09.01 18:04:08 +05'30'
