Kamlesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 13824 MP

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                                         IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT INDORE
                                                     CRA No. 12218 of 2022
                                               (KAMLESH Vs THE STATE OF MADHYA PRADESH)

                          Dated : 23-08-2023
                                 Shri Ashish Gupta - Advocate for appellant.

                                 Shri Bhuwan Gautam - Govt. Advocate for the respondent/State.

Heard on I.A.No.16462 of 2022, which is first application under Section 389(1) of Cr.P.C. for grant of bail and suspension of remaining jail sentence on behalf of the sole appellant Kamlesh.

Appellant stands convicted vide judgment dated 14.12.2022 passed in SC No.41 of 2021 by Special Judge (Protection of Children from Sexual Offences Act, 2012), Ratlam (M.P.) under Sections 366, 376(3), 344 of the Indian Penal Code, 1860 and Section 5(L)/6 of the Protection of Children from Sexual Offences Act, 2012 and has been sentenced to undergo 05 years RI with fine of Rs.1,000/-, 20 years RI with fine of Rs.2,000/-, 02 years RI with fine of Rs.500/- and 20 years RI with fine of Rs.2,000/- respectively with usual default stipulation.

Learned counsel for the appellant submits that appellant is an innocent

person and he has been falsely implicated in this matter. He is suffering jail incarceration since 19/01/2021. Prosecution has failed to prove that prosecutrix was minor at the time of incident. Prosecutrix was consenting party. Appellant was also below 18 years at the time of incident. FSL report is not found positive. There are material contradictions and omissions in the statement of the witnesses. Looking to old pendency of the cases for consideration, final conclusion of this appeal would take sufficient long time. There is a strong case

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 8/24/2023 10:20:40 AM

in favour of the appellant. Hence, the execution of the remaining part of the jail sentence of the appellant be suspended till the final disposal of this appeal.

Per contra, learned counsel for the respondent / State opposes the application for suspension of sentence and prays for its rejection by submitting that the trial Court after due consideration of the evidence available on record, convicted the appellant. Hence, he is not entitled to grant benefit of suspension of sentence.

Considering all the facts and circumstances of the case, nature of the allegation levelled against the appellant and also taking note of the fact that prosecutrix (PW-1) stated that her date of birth is 23.04.2007. The same date of

birth was recorded in the Scholar Register (Ex.-P/1), which was proved by the Teacher Phanji (PW-4). Trial Court has conducted inquiry regarding the age of the appellant, but after the inquiry, it has been held that the age of the appellant was more than 18 years at the time of incident and as per the Scholar Register (Ex.-P/1) his date of birth is 08.08.2003. The statement of prosecutrix (PW-1) regarding the commission of rape has been well supported by the other witnesses.

In view of the aforesaid, we are not inclined to allow the application for suspension of sentence. Accordingly, IA.No.16462 of 2022 stands dismissed.

                                (RAVI MALIMATH)                                            (ANIL VERMA)
                                  CHIEF JUSTICE                                               JUDGE

                          Tej




Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 8/24/2023
10:20:40 AM