Madhya Pradesh High Court
Kamil @ Babu vs The State Of Madhya Pradesh on 11 October, 2022
Author: Vivek Rusia
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CRA No. 3081/2022
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
BEFORE DIVISION BENCH OF HON'BLE SHRI JUSTICE VIVEK
RUSIA & HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
CRA No. 3081 of 2022
(Kamil @ Babu S/o. Shobhan Damor V/s. State of M.P.)
Date: 11.10.2022 :
Shri C.L. Yadav, learned Sr. Advocate with Shri Anil Malviya,
Advocate for the appellant.
Shri Kamal Kumar Tiwari, learned Govt. Advocate for
respondent/State.
Heard on the question of admission.
Appeal is admitted for final hearing.
Also heard on I.A. No.8943/2022, first application under
Section 389(1) of the Code of Criminal Procedure, 1973 for
suspension of jail sentence and grant of bail filed on behalf of the
appellant.
Vide judgment dated 16.2.2022 passed by Special Judge,
(Protection of Children from Sexual Offences Act), Jhabua in Special
Case No. 16/2020 the appellant stands convicted and sentenced as
under :
Offence U/s. Sentence. Fine (Rs.) In lieu of payment
of Fine amount.
363 of IPC. 7 years RI. 1,000/- 6 months RI.
366 of IPC. 10 years RI. 1,000/- 6 months RI.
376(2)(n) of IPC. 10 years RI. 1,000/- 6 months RI.
342 of IPC. 1 year RI. 1,000/- 6 months RI.
5(l), 6 of 20 years RI. 1,000/- 6 months RI.
Protection of
Children from
Sexual Offences
Act.
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CRA No. 3081/2022
As per prosecution story, father of the prosecutrix lodged a
report at Police Station, Jhabua on 10.4.2020 that on 8.4.2020 near
about at 11.30 his daughter (prosecutrix) left the house by taking
Scooty Pleasure without informing anybody. Despite search in the
nearby area and relatives she was not found and he is having
apprehension that the present appellant has eloped her. On the basis of
such suspicion, the FIR was registered u/s. 363 of the IPC at Crime
No.258/2020. Later on, the prosecutrix was recovered and since she
was minor, therefore, other offences under the provisions of Protection
of Children from Sexual Offences (POCSO) Act were added in the
FIR. The appellant and another accused - Suraj @ Suresh were
arrested. Investigation was completed and charge-sheet was filed.
Learned trial Court ascertained the date of birth of the prosecutrix as
3.5.2004 on the basis of Scholar Register and mark-sheet of Board of
Secondary Education. In order to confirm the sexual assault, DNA
samples of the appellant and the prosecutrix were taken which has
confirmed the commission of sexual intercourse.
Learned senior counsel appearing for the appellant submits that
the appellant and the prosecutrix were in affair and the prosecutrix
herself left the house of parents by Scooty, therefore, offence u/s. 363
and 366 of the IPC are not made out and he has falsely been
implicated in this case. He further submits that as per medical report,
no internal as well as external injuries were found on the body of the
prosecutrix. No definite opinion of rape has been given by the Doctor.
The appellant has been implicated as he did not accept the pressure of
the prosecutrix and her relatives about conversion of his religion from
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CRA No. 3081/2022
'Adiwasi' to Muslim. Hence, he is entitled for suspension of jail
sentence.
The prayer is opposed by the learned Govt. Advocate appearing
for the respondent/State.
We have heard the learned counsel for the parties and perused
the record.
As on today, the prosecution has been able to establish the age
of the prosecutrix i.e. 15 years and 11 months at the time of
commission of the offence and the DNA report which has confirmed
the sexual assault, therefore, consent has no meaning. We find no
reason to ignore the aforesaid evidence on record. No case for grant of
suspension is made out.
Accordingly, I.A. No.8943/2022 is dismissed.
List for final hearing in due course.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.10.14 10:02:05 +05'30'
