Madhya Pradesh High Court
Basant @ Lutti Kol vs The State Of Madhya Pradesh on 3 April, 2023
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 1028 of 2021
(BASANT @ LUTTI KOL Vs THE STATE OF MADHYA PRADESH)
Dated : 03-04-2023
Shri Arun Kumar Vishwakarma - Advocate for the appellant.
Shri Pramod Kumar Pandey - Government Advocate for the
respondent/State.
I A . No.20287/2022, third repeat applications u/S.389 Cr.P.C. for
suspension of sentence moved on behalf of appellant- Basant @ Lutti Kol, is
taken up and considered along with reply of the State.
State despite having been afforded repeated opportunities to file
objection has failed to do so. As such written objection filed by the State on
04.02.2022 to one of the earlier applications is taken into account.
This criminal appeal assails the judgment dated 12.02.2021 passed in
S.T. No.95/2017 by VII Additional Sessions Judge, Katni whereby appellant
has been convicted u/S.450 and 376 of IPC and sentenced to undergo R.I. for
ten years with fine of Rs.1,000/- and life imprisonment with fine of Rs.5,000/-
with default stipulations.
Learned counsel for the appellant submits that prosecution story found to
be proved is to the effect that on the fateful night when the husband of
prosecutrix, aged about 28 years was away and she was sleeping with her six
children, the appellant entered the house by opening the door, which in all
probability was closed from inside and thereafter committed rape with her.
Learned counsel for appellant also submits that immediately after the
incident, there is evidence is to the effect that prosecutrix washed her clothes.
More so, it is contended by learned counsel for appellant by referring to Para 5
Signature Not Verified
Signed by: MOHAMMED
MOHSIN QURESHI
Signing time: 4/3/2023
5:35:33 PM
of cross examination of prosecutrix (PW/1) that despite husband of prosecutrix
having returned in the night, the FIR was made next day in the morning. It is
submitted that in this factual background prosecution story is rendered
suspicious and the element of consent becomes relevant. It is also submitted
that there are no injury marks of struggle found on the body of prosecutrix. Past
animosity between the rival parties is also urged by learned counsel for
appellant.
Learned counsel for the State opposed the application and prayed for its
rejection. The prosecution has relied upon the FSL report where sperms were
found on the clothes of prosecutrix.
The appellant has suffered two years and seven months of incarceration
and there is no hope of appeal being decided in near future.
Accordingly, without entering into the merits of the matter, this Court is
inclined to grant bail to appellant by way of suspension of sentence. Hence,
IA.20287/2022 is allowed.
It is directed that jail sentence of appellant- Basant @ Lutti Kol will
remain under suspension subject to deposit of fine amount, if not already
deposited, and on furnishing bail bond of Rs.50,000/- (Rupees Fifty
Thousand Only) with two solvent sureties of the like amount to the
satisfaction of concerned available Magistrate for his appearance before
concerned available Magistrate on 08.05.2023 and on such further dates as
may be fixed in this regard which shall be of frequency not less than once a
year.
In case, appellant is found absent on any date fixed by the concerned
available Magistrate, then concerned available Magistrate shall be free to issue
Signature Not Verified
and execute warrant of arrest for securing his presence without first referring the
Signed by: MOHAMMED
MOHSIN QURESHI
Signing time: 4/3/2023
5:35:33 PM
matter to this Court, provided the Registry of this Court is kept informed.
A copy of this order be sent to the trial Court concerned for compliance.
C.C. as per rules.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
mohsin
Signature Not Verified
Signed by: MOHAMMED
MOHSIN QURESHI
Signing time: 4/3/2023
5:35:33 PM
