Madhya Pradesh High Court
Kalu Barela vs The State Of Madhya Pradesh on 14 July, 2023
Author: Vivek Rusia
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CRA No. 2960/2023
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
BEFORE DIVISION BENCH OF HON'BLE SHRI JUSTICE VIVEK
RUSIA & HON'BLE SHRI JUSTICE ANIL VERMA
CRA No. 2960 of 2023
(KALU BARELA & ANOTHER. V/S. STATE OF M.P.)
Date: 14.07.2023 :
Shri Brijendra Kumar Mishra, learned counsel for the
appellants.
Shri Mukesh Sharma, learned Panel Lawyer for the
respondent/State.
Heard on I.A. No.2886/2023, which is first application under
Section 389(1) of the Code of Criminal Procedure, 1973 for
suspension of jail sentence and grant of bail filed on behalf of
appellants - Kalu and Pataniya @ Partaniya.
Vide judgment of conviction and sentence dated 9.5.2022
passed by the Special Judge under Protection of Children from Sexual
Offences Act, Barwani, District - Barwani in Special Case
No.69/2020, the appellant - Kalu has been convicted for the offences
punishable under Section 366 of the IPC and u/s. 5(j)(ii)(n) read with
Section 6 of the POCSO Act and sentenced to undergo 03 years' and
20 years' RI and to pay fine of Rs.100/- & 500/- with default
stipulation. Appellant - Pataniya @ Partaniya has been convicted for
the offences punishable u/s. 366 of the IPC and u/s. 6 read with
Section 17 of the POCSO Act and sentenced to undergo 03 years' and
20 years' RI and to pay fine of Rs.100/- & 500/- respectively with
default stipulation.
The prosecution story in short is that on 8.9.2020 at 4:00 pm,
the prosecutrix went to the hand pump to bring water. Thereafter, the
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father of the prosecutrix, who was at home heard the alarm raised by
the prosecutrix. When he went there and saw that co-accused Kalu
took away her daughter towards the jungle. Thereafter, he narrated the
story to his elder brother and other people of the village. A report was
lodged in the police station in this regard. The police recovered the
prosecutrix from possession of the co-accused - Kalu. Thereafter, the
police recorded the statement of prosecutrix in which she stated that
Kalu committed rape upon her. The allegation against the present
appellant is that he helped the co-accused - Kalu for committing the
said offence. Thereafter, an F.I.R. was lodged under Sections 363,
363/34, 366 and 366/34 of the IPC & Section 6/17 of the POCSO Act.
At the very outset, learned counsel for the appellants prays for
withdrawal of the application so far it relates to appellant No.1 - Kalu.
Prayer allowed. I.A. No.2886/2023 stands dismissed as
withdrawn so far as it relates to appellant No.1 - Kalu.
Learned counsel for the appellant submits that so far as the role
of present appellant is concerned, he boarded the prosecutrix and Kalu
in the bus which was going towards Gujarat. There is no allegation
against appellant No.2 Pataniya @ Partaniya that he committed rape
upon her. He has wrongly been convicted for the offence punishable
under Section 6/17 of the POCSO Act. At the most he has committed
offence punishable under Section 366 of the IPC and Section 17 of the
POCSO Act for which he had already remained in jail for considerable
period. He is 47 years of age. The prosecutrix and co-accused - Kalu
were in love affair and performed the marriage. The prosecution has
failed to establish that at the time of incident the prosecutrix was
minor. At the time of admission in the school, no documents were
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produced for recording the date of birth of the prosecutrix as 3.3.2003.
The jail sentence of co-accused Mastriya has been suspended by this
Court and appellant No.2 is having parity with him. Hence, the jail
sentence of appellant No.2 may be suspended and he be released on
bail.
Learned Panel Lawyer for the respondent/State opposes the
application and prays for its rejection.
Considering the facts and circumstances of the case and
especially the role attributed to the present appellant, we deem it
proper to suspend the remaining jail sentence of this appellant.
Accordingly, I.A. No.2886/2023, so far as it relates to appellant
No.2, stands allowed. The execution of remaining jail sentence of
appellant - Pataniya @ Partaniya is hereby suspended and it is ordered
that he be released on bail upon his furnishing a personal bond for a
sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent
surety of the like amount to the satisfaction of the trial Court and
subject to depositing the fine amount (if not already deposited) with a
further direction to appear before the concerned Trial Court on
15.12.2022 and also on such other dates, as may be fixed by the
concerned trial Court in this regard during the pendency of this appeal.
C.C. as per rules.
[ VIVEK RUSIA ] [ANIL VERMA]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.07.18 10:44:55 +05'30'
