Kamli @ Kamal Shakya vs The State Of Madhya Pradesh
2023 Latest Caselaw 3568 MP

                                                               1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                    AT GWALIOR
                                                       CRA No. 10661 of 2022
                                           (KAMLI @ KAMAL SHAKYA Vs THE STATE OF MADHYA PRADESH)

                          Dated : 28-02-2023
                                 Mr. Tapendra Sharma -Advocate for the appellant.

                                 Ms. Anjali Gyanani - Public Prosecutor for the respondent - State.

Mr. Aditya Sharma - Advocate for the complainant.

Heard on I.A. No. 103 of 2023, first application under Section 389 (1) of Cr.P.C. filed on behalf of the appellant seeking suspension of sentence and

grant of bail.

Appellant stands convicted under Section 6 of POCSO Act and sentenced to suffer 20 years' RI with a fine of Rs.3,000/- with default stipulation vide judgment of conviction and order of sentence dated 14.10.2022 passed by Special Judge (POCSO) Act in Special Case No.97/2019.

Though as per the prosecution story, appellant and the prosecutrix were alleged to be 17 years of age at the time of alleged incident of abduction and sexual abuse. However, as on date, the appellant is married to the prosecutrix. The prosecutrix is present in the Court, identified by her counsel, as well as her

Adhar Card annexed with the application seeking leave of the Court to assist the prosecution under Section 301(2) of Cr.P.C. i.e. I.A.No.3824/2023.

It is submitted by learned counsel for the appellant that the prosecutrix has endorsed the statement in-connection with her marriage with the appellant. Though the Sessions Court has convicted the appellant treating the prosecutrix below 18 years of age but there is no conclusive evidence in that behalf. Referring to the deposition of grandmother (PW-3) of the prosecutrix, learned counsel for the appellant submits that the witness expressed ignorance about the Signature Not Verified Signed by: BARKHA SHARMA Signing time: 28-Feb-23 5:32:59 PM

age and date-of-birth of the prosecutrix. Besides, PW-1 the prosecutrix herself has deposed that she is more than 18 years of age. In any case, now both of them have solemnized marriage. Therefore, prays for suspension of sentence.

Per contra, Ms. Gyanani though supports the judgment impugned but in view of the fact of marriage of the prosecutrix and the appellant offers no comment in that behalf. Learned counsel for the prosecutrix supports the application filed on behalf of the appellant with submissions that the prosecutrix does not object to the suspension of sentence to the appellant as she is married to the appellant.

Upon hearing learned counsel for the parties, though this Court refrains

from commenting on rival contentions touching merits of the case, but regard being had to the obtaining facts and circumstances and that the appellant is married to prosecutrix and even otherwise looking to the evidence on record, prima facie, we are of the view that the appellant is entitled for the benefit of suspension of sentence and grant of bail. Therefore, the application is allowed.

Accordingly, it is directed that the jail sentence of the appellant shall remain suspended and he shall be released on bail on furnishing a personal bond in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court. The appellant is directed to appear before the Registry of this Court first on 25.04.2023 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, his medical examination be conducted through the jail doctor and if it is prima facie found that he is having any symptoms of COVID-19, then the

Signature Not Verified consequential follow up action or any further test required be undertaken Signed by: BARKHA SHARMA Signing time: 28-Feb-23 5:32:59 PM

immediately. If not, the 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. Accordingly, the I.A. stands allowed and disposed of.

Observations on facts, if any, are only for the purpose of deciding the instant I.A. and shall have no bearing on the merits of the appeal.

Certified copy as per rules.

                                 (ROHIT ARYA)                                  (SATYENDRA KUMAR SINGH)
                                    JUDGE                                               JUDGE

                          bj/-




Signature Not Verified
Signed by: BARKHA
SHARMA
Signing time: 28-Feb-23
5:32:59 PM