Madhya Pradesh High Court
Arvind Alias Kalla Kushwah vs The State Of Madhya Pradesh on 23 February, 2023
Author: Rohit Arya
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 9672 of 2022
(ARVIND ALIAS KALLA KUSHWAH Vs THE STATE OF MADHYA PRADESH)
Dated : 23-02-2023
Shri R.K.Sharma - Senior Advocate along-with Shri V.K. Agrawal -
Advocate for the appellant.
Shri Rajesh Shukla - Deputy Advocate General for State.
Heard o n I.A.No.1199/2023, which is first application filed under
Section 389 (1) of Cr.P.C for suspension of sentence and grant of bail on
behalf of appellant - Arvind alias Kalla Kushwah.
T he appellant has been convicted under Sections 376 (3) of IPC and
sentenced to suffer twenty years RI with fine of Rs.3000/-, with default
stipulation vide judgment dated 15.09.2022 passed in SC No.94/2019 by
Special Judge, (POCSO Act, 2012) Shivpuri.
A s per prosecution story, appellant is alleged to have manipulated the
prosecutrix and fled away with her. Accordingly, a missing report was filed and
after her recovery, provisions of Section 366, 376 of IPC read with Section 3/4
of POCSO Act were added. Upon completion of investigation, challan was
filed. The case was committed for sessions trial. The Sessions Court has
convicted the appellant and sentenced as aforesaid.
Shri R.K. Sharma, learned senior counsel, while taking exception to the
impugned judgment submits that as a matter of fact, the prosecutrix was major
at the time of incident. She has married the appellant. She has turned hostile
during the course of oral depositions. She has clearly stated that since her father
was all set to marry her to an old man, to which she took objection and ran
away with the present appellant and thereafter solemnized marriage. Shri Sharma
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also submits that prosecutrix is present in the Court.
This Court called upon her to confirm the aforesaid fact. She did so.
Shri Sharma also submits that the Sessions Court ignored the evidence of
the proseuctrix and presumed her to be a minor at the time of incident ignoring
the evidence of parents who had no knowledge about about her date of birth
and age, as well evident from Para 17 of the impugned judgment. As such, the
judgment suffers from patent perversity of approach. The appellant has suffered
jail incarceration of 11 months during trial and thereafter from the date of
impugned judgment till date. The appeal is of the year 2022. There is no
likelihood of early hearing of the appeal. Hence, prays for suspension of
sentence and grant of bail.
Per contra, Shri Shukla while supporting the impugned judgment tried to
persuade this Court that a minor was abducted and thereafter sexually abused.
It is a heinous crime and, therefore, no exception may be taken in the matter of
suspension of sentence.
Upon hearing learned counsel for the parties, though this Court refrains
from commenting upon rival contentions so advanced touching merits of the
case, but regard being had to fact that the appellant has married to prosecutrix
as confirmed by the prosecutrix herself and has already suffered the jail
incarceration of 11 months during the trial and thereafter from the date of
impugned judgment till date, hence, the appellant is held entitled for suspension
of jail sentence.
Consequently, the I.A. is hereby allowed. Accordingly, it is directed
that the jail sentence of the appellant shall remain suspended and he be released
on bail on his furnishing a personal bond in the sum of Rs1,00,000/- (Rupees
One Lac only) with one solvent surety in the like amount to the satisfaction of
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the trial Court subject to verification of factum regarding deposit of fine
amount. Appellant is directed to appear before the Registry of this Court on
10/04/2023
and on other subsequent dates as may be fixed in this behalf with
following further conditions:-
(i) the concerned jail authorities are directed that before releasing
the appellant, the medical examination of the appellant be
conducted through the jail doctor and if it is prima facie found that
she is having any symptoms of COVID-19, then the consequential
follow up action or any further test required be undertaken
immediately. If not, appellant shall be released on bail in terms of
the conditions imposed in this order ;
(ii) violation of conditions, State is free to apply for cancellation of
bail.
It is made clear that the observations made on facts shall have no bearing
on the merits of the appeal.
List this appeal for final hearing in the month of July, 2023.
Certified copy as per rules.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Aman
AMAN TIWARI
2023.02.23
16:37:23 +05'30'
