Bablu @ Bulbul Damami vs The State Of Madhya Pradesh
2022 Latest Caselaw 7124 MP

1                             Cr.A.No.7125/2021
                  (Bablu @ Bulbul Damami Vs. State of M.P.)

Indore : Dated 11.5.2022
        Shri Virendra Sharma, learned counsel for the appellant.
        Shri   Mukesh     Sharma,    learned   Panel     Lawyer      for   the
respondent/State.

Heard on I.A.No.29061/2021, which is first application for grant of suspension of sentence filed on behalf of appellant.

The trial Court has convicted the appellant under Section 363, 376(2(N) of IPC read with Section 5/6 of the Protection of Children from Sexual Offences Act and sentenced to undergo five years' RI with fine of Rs.1,000/-, with default stipulation, vide judgment of conviction and order of sentence dated 15.11.2021 passed by Special Judge (POCSO Act), Barnagar, District Ujjain in Special S.T.No.43/2020.

Prosecution case, in brief, is that appellant kidnapped/abducted minor prosecutrix aged about 14-15 years and committed rape upon her repeatedly.

Learned counsel for the appellant submits that prosecution has produced copy of the scholar register entry Ex.P/9 with regard to age of the prosecutrix, but prosecutrix's father (PW-3) in para 5 of his cross-examination has admitted that as per scholar register prosecutrix's date of birth was written on the basis of presumption. Principal of the school has also stated so, therefore, learned trial Court has committed error in holding the prosecutrix minor at the time of

(Bablu @ Bulbul Damami Vs. State of M.P.)

incident. From the statement of prosecutrix it is apparent that she was consenting party and has not stated anything against the appellant. Appellant is in custody since 1.8.2019 and has suffered near about three years of sentence out of total sentence awarded to him. There is no likelihood of hearing of appeal in near future. In view of aforesaid, learned counsel for the appellant prays for suspension of remaining jail sentence and grant of the bail to the appellant.

Learned counsel appearing for the respondent/State has opposed the prayer. Loking to the nature of allegations the appellant is not entitled for bail.

Having considered the rival submissions, evidence produced on record with regard to age of the prosecutrix, statement of prosecutrix recorded under Section 164 of Cr.P.C.as well as the statement recorded during trial and also considering other material available on record, there is no likelihood of hearing of appeal in near future, but without expressing any opinion on merits of the case, the application I.A.No.29061/2021 is allowed and jail sentence of the appellant shall remain suspended.

It is directed that subject to depositing the fine amount, if already not deposited, he shall be released on bail, on furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with solvent surety in the like amount to the satisfaction of trial Court, for his appearance before the Registry of this Court

(Bablu @ Bulbul Damami Vs. State of M.P.)

firstly on 4.7.2022, and on such other dates, as may be fixed by the Registry in this regard, till final disposal of this appeal.

I.A.No.29061/2021 is allowed.

List in due course.

C.C. as per rules.

(Satyendra Kumar Singh) Judge

Patil

Digitally signed by SHAILESH PATIL Date: 2022.05.12 12:21:31 +05'30'