Madhya Pradesh High Court
Kalla @ Kalyan vs The State Of Madhya Pradesh on 17 April, 2023
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 2578 of 2018
(KALLA @ KALYAN Vs THE STATE OF MADHYA PRADESH)
Dated : 17-04-2023
Per Justice Satyendra Kumar Singh-
Shri Atul Gupta - Advocate for the appellant.
Shri Rajesh Kumar Shukla - Additional Advocate General for the
respondent/State.
Heard on I.A. Nos.2785/2023 and 15855/2022.
IA No.2785/2023 is an application for urgent hearing while IA
No.15855/2022 is the first application under Section 389 (1) of Cr.P.C.
seeking suspension of sentence and grant of bail moved on behalf of appellant-
Kalla alias Kalyan.
IA No.2785/2023, which is an application for urgent hearing, is allowed
and IA No.15855/2022 is taken up for consideration.
Appellant stands convicted under Sections 376 (1), 316/34 of IPC and
sentenced to undergo life imprisonment & ten years' rigorous imprisonment and
a fine of Rs.5000/- in both offences, with default stipulation and further
convicted under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act and sentenced to undergo life imprisonment and
fine of Rs.5,000/- with default stipulation vide judgment of conviction and order
of sentence dated 27/01/2018 passed by Special Judge, SC/ST (Prevention of
Atrocities) Adhiniyam, Vidisha, M.P. in S.S.T. No.28/2015.
Learned counsel for the appellant-Kalla alias Kalyan submits that it has
been alleged against the appellant that he alongwith co-accused Sushilabai,
knowing the fact that prosecutrix aged about 16 years is a member of SCST
community, called her to co-accused Sushilabai's house and committed rape on
her, due to which she got pregnant and thereafter co-accused Sushilabai in
connivance with appellant gave her medicine and caused the death of the quick
born child of the prosecutrix. He submits that it has been found by the learned
Trial Court that prosecutrix was major at the time of incident. Prosecutrix was a
consenting party, hence, appellant's conviction under Section 376 of IPC is not
sustainable. Provisions of SC/ST Act will not attract in the matter and rest of
the offences alleged against the appellant are punishable upto 10 years
imprisonment. Appellant has suffered till now eight years and eight months
actual jail sentence. There is no likelihood of hearing of this appeal in near
future. Co-accused Sushilabai has already been enlarged on bail vide order
dated 10/11/2020 passed in connected Criminal Appeal No.2438/2018.
Therefore, appellant is also entitled for bail and his remaining period of sentence
may be suspended and he be enlarged on bail.
P er contra, learned counsel for the respondent/State has opposed the
prayer and submits that prosecutrix was minor at the time of incident and has
supported the prosecution case that appellant with the assistance of co-accused
Sushilabai repeatedly committed rape upon her, due to which she got pregnant.
DNA test report supports the prosecution case. Offences alleged against the
appellant are of heinous in nature, therefore, he is not entitled to be enlarged on
bail.
Heard learned counsel for both the parties at length and perused the
record.
Upon perusal of the record, it is apparent that learned Trial Court vide
impugned judgment dated 27/1/2018, finding the proseuctrix major at the time
of incident, has acquitted the appellant for the offence punishable under the
POCSO, Act. Admittedly, FIR was lodged after about 6 months of the incident
when dead body of the quick born child of the prosecutrix was found. In view
of the aforesaid, considering the submissions made by the learned counsel for
the appellant with regard to the offence of rape and also considering the period
of incarceration of the appellant, without expressing any opinion on merits, in
view of this Court, the appellant deserves to be enlarged on bail.
Accordingly, I.A. No.15855/2022 stands allowed and it is directed that
the jail sentence of appellant shall remain suspended during pendency of present
appeal and he shall be released on bail on his furnishing a personal bond in the
sum of Rs.2,00,000/- (Rupees Two Lacs only) with one solvent surety in the
like amount to the satisfaction of the Trial Court. Appellant is directed to appear
before the Registry of this Court first on 10/5/2023 and on other subsequent
dates as may be fixed in this behalf with following further conditions:-
(i) Appellant will abide by the terms and conditions of various
circulars and orders issued by the Government of India and the State
Government as well as the local administration from to time in the
matter of maintaining social distancing, physical distancing, hygiene,
etc., to avoid proliferation of Novel Corona virus (COVID-19);
(ii) The concerned Jail Authorities are directed that before
releasing Appellant, her medical examination be conducted through
the jail doctor and if it is prima facie found that she is having any
symptom of COVID-19 then the consequential follow up action
including the isolation/quarantine or any further test required be
undertaken immediately;
(iii) On violation of the conditions, State is free to apply for
cancellation of bail.
Accordingly, IA. No.15855/2022 stands allowed and disposed of.
Observations on facts, if any, are only for the purpose of disposal of the
instant application for suspension of sentence and shall have no bearing on the
merits of the appeal.
List for final hearing in due course alongwith Cr.A. No.2438/2018.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.04.18 11:31:33 +05'30'
