Balram @ Kanhaiya vs The State Of Madhya Pradesh
2022 Latest Caselaw 7118 MP

                            1




       THE HIGH COURT OF MADHYA PRADESH
               Criminal Appeal No.28/2022
      (Balram @ Kanhaiya vs. State of Madhya Pradesh)

Jabalpur, Dated 11.05.2022

      Shri Prashant Chourasia, counsel for the appellant.
      Shri Chandrapal Singh Parmar, Public Prosecutor for the
respondent State.

I.A. No.2157/2022 is taken up.

2. This is first application under Section 389(1) of CrPC for suspension of sentence of the appellant who stands convicted and sentence as under-

Convicted under                      Sentenced to
    Section
    363 IPC      R.I. for 3 years and to pay fine of Rs.500/- and in

edefault of payment of fine, to suffer R.I. for 1month 366 IPC R.I. for 10 years and to pay fine of Rs.1000/- and in default of payment of fine, to suffer R.I. for 3 months 376(2)(N) IPC R.I. for 10 years and to pay fine of Rs.1000/- and in default of payment of fine, to suffer R.I. for 3 month

3. It is argued by learned counsel for the applicant that the victim had stayed with the applicant for about 6 months.

4. According to the prosecution case itself, the date of missing is 05.06.2016 and date of recovery is 19.12.2016. They stayed at several places together even in the house of aunt of the applicant and thereafter in the house of sister of the applicant.

Thereafter, they rented a room and stayed their for a considerable time. Though the allegation of rape had been made by the prosecutrix later on, but, actually she had gone with the applicant to do work and to earn livelihood, but, some dispute ocured between both of them, in inebriated condition of the applicant and then, she lodged the report against him. Immediately, after the recovery she was produced before the Judicial Magistrate but, had not made any allegation of rape. Lateron, she improved her statement and made such allegation in her Court statement. Samples of vaginal swab and semen have been collected by the police after about 6 months of missing of the prosecutrix on 28.12.2016, when there was no allegation of rape; therefore, positive FSL report cannot be relied upon. The applicant is in jail from the date of judgment i.e., 07.12.2021. The appeal would take time to be heard finally; therefore, the sentence of the appellant be suspended.

5. Learned Public Prosecutor for the respondent State opposed the prayer stating that at the time of the incident the prosecutrix was minor and this fact has not been challenged by the applicant. Further statement of other witnesses and the prosecutrix as well as the positive FSL report has been referred to by the learned Public Prosecutor to press his prayer for rejection of suspension application.

6. I have considered the rival contentions of the parties and have perused the record.

7. Besides the grounds taken by the petitioner incident of rape could not be confirmed in the medical examination done by Dr.Pratibha Raghuwanshi (PW/12). Having regard to the aforesaid fact and other facts and circumstances of the case, I deem it appropriate to allow the application. Therefore, on due consideration I.A. No.2157/2022 is allowed.

8. It is directed that on deposition of the fine amount, if not deposited, and also on furnishing a personal bond of Rs.30,000/- (Rupees Thirty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the Trial Court on 23.08.2022 and on all other subsequent dates, as may be fixed by the trial Court in this behalf, the execution of substantial jail sentence imposed on the appellant No.1-Balram @ Kanhaiya shall remain suspended, till final disposal of this appeal.

9. List for final hearing in due course.

(Virender Singh) Judge Loretta Digitally signed by MRS. LORETTA RAJ Date: 2022.05.13 16:39:11 +05'30'