Kalyan vs The State Of Madhya Pradesh
2022 Latest Caselaw 9346 MP

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    HIGH COURT OF MADHYA PRADESH AT INDORE
            CRIMINAL APPEAL NO.7159 OF 2019
                  (Kalyan vs The State of Madhya Pradesh)


Indore, Dated 11.07.2022
      Mr. Vivek Singh, learned counsel for the Appellant.
      Mr. Raghvendra Singh Bais, learned counsel for the
Respondent/State.

Heard on IA No.2914/2022 which is an application for urgent hearing. Keeping in view the reasons mentioned in the application, the same is allowed. Accordingly, IA No.2914/2022, stands disposed of.

Also heard on IA No.2913/2022 which is first application under Section 389 of the Code of Criminal Procedure, 1973, for suspension of jail sentence filed on behalf of appellant - Kalyan S/o Tarsingh who has been convicted by learned Additional Sessions Judge, Bhikangaon, District - Mandleshwar (MP) in Special Session Trial No.27/2018 vide judgment dated 14.02.2019 and has been sentenced him as under:

              Conviction                            Sentence
     Section & Act     Imprisonment       Fine Amount   Imprisonment
                                                         in lieu of fine
        343 IPC          01 Year RI        Rs.1,000/-   01 month addl.
                                                            RI.
        363 IPC         05 Years RI        Rs.1,000/-   01 month addl.
                                                            RI.

    HIGH COURT OF MADHYA PRADESH AT INDORE
            CRIMINAL APPEAL NO.7159 OF 2019

(Kalyan vs The State of Madhya Pradesh)

366 IPC 10 Years RI Rs.1,000/- 01 month addl.

RI.

376(2)(N) IPC 10 YearS RI Rs.2,000/- 02 months addl.

RI.

Learned counsel for the appellant submits that as per prosecution case, the prosecutrix was 17 years and 10 months at the time of incident. The prosecution has not produced any concrete material except the scholar register in which the DOB of prosecutrix has been mentioned as 12.09.2000. FIR has been delayed by five days without any reasonable cause. It is also stated that the appellant took the prosecutrix on his motorcycle infront of her mother. It is apparent from the statement of prosecutrix that she was in the company of appellant for about seven days. It is submitted that learned trial Court has committed an error while holding the appellant guilty and has punished the appellant for the offences, as mentioned above. The appellant is in custody since 13.07.2018 and has suffered the jail sentence of four years out of ten years of jail sentence awarded to him. Learned counsel has also submitted that as per medical report received from the Jail Superintendent, Khargone, the appellant is suffering from HIV Positive since last four years and presently he is patient of regular

HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.7159 OF 2019 (Kalyan vs The State of Madhya Pradesh)

ART treatment. There is no likelihood of early hearing of this appeal and this appeal would take considerably long time for its final disposal. Hence, the sentence of appellant may be suspended and he may be released on bail.

Per contra, learned counsel for the respondent/State has opposed the prayer but fairly conceded that appellant is suffering from HIV Positive and is undergoing treatment since last four years.

Having considered the rival submissions and the evidence produced on record with regard to the age of prosecutrix, her statements recorded in the trial Court and also considering the period of custody of appellant which is more than 50% of the sentence awarded to him, without commenting anything upon the merits of the case, this application is allowed.

It is directed that if the appellant - Kalyan S/o Tarsingh furnishes the personal bond of Rs.50,000/-(Rupees Fifty thousand) and a solvent surety of like amount to the satisfaction of Trial Court, and on depositing the fine amount (if not already deposited), the remaining portion of jail sentence of appellant shall be suspended and he be released on bail for his appearance

HIGH COURT OF MADHYA PRADESH AT INDORE CRIMINAL APPEAL NO.7159 OF 2019 (Kalyan vs The State of Madhya Pradesh)

before the Registry of this Court on 07.09.2022 and thereafter on all subsequent dates as may be fixed by the Registry in this behalf. Accordingly IA No.2913/2022 stands disposed of.

This is already an admitted appeal.

Record has been received.

List the appeal for final hearing in due course. Certified copy, as per Rules.

                                              (SATYENDRA KUMAR SINGH)
  Arun/-                                              JUDGE


Digitally signed by ARUN
NAIR
Date: 2022.07.11 18:54:20
+05'30'