Madhya Pradesh High Court
Kamlesh vs The State Of Madhya Pradesh on 21 June, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 3338 of 2023
(KAMLESH Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 21-06-2023
Shri Laxmi Narayan Sakle - Advocate for the appellant.
Shri Arvind Singh - Government Advocate for the respondent-State of
M.P.
Shri K.S. Rajput - Advocate for the Objector.
Learned counsel for the appellant seeks to withdraw IA No.13370 of
2023.
IA No.13370 of 2023 is dismissed as withdrawn.
Heard on I.A. No.5225 of 2023 an application under Section 389 (1) of
Cr.P.C. for suspension of sentence and grant of bail to appellant-Kamlesh
arising out of judgment dated 05.12.2022 delivered in SCATR No.51 of 2018
by IIIrd Additional Sessions Judge, (Prevention of Atrocities) Act, Harda,
(MP).
This appellant has been convicted under Sections 363 of IPC to undergo
RI for three years and fine of Rs.100/-, under Section 366-A of IPC to
undergo RI for seven years and fine of Rs.200/-, under Section 376 (2) (n) of
IPC to undergo RI for ten years and fine of Rs.500/-, under Section 5 (i)/6 of
Protection of Children from Sexual Offences Act to undergo RI for ten years
and fine of Rs.500/- and under Section 3 (2) (v) of SC/ST (Prevention of
Atrocities) Act to undergo RI for Life and fine of Rs.500/- with default
stipulation.
Learned counsel for the appellant submits that as per prosecution story,
the victim went missing on 20.02.2009 and a report was lodged in Police
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 6/22/2023
12:50:01 PM
Station, Sirali, district Harda as No.03/09. FIR No.22/2009 was also registered.
The victim was recovered from possession of the appellant after about nine
years on 27.7.2017.
The court below has committed an error of facts and law in determining
the age of the victim on the basis of averments mentioned in 'Gum Inshan
Report', whereby age can be determined only as per Act/Rule wherein statutory
methods of determination of age is prescribed. The victim has already
solemnized marriage with someone else and residing with the said person. A girl
child born because of relation between the appellant and victim is residing with
the family of the appellant. Thus, the determination of the age is bad in law.
The prosecution could not establish with clarity that the victim was minor and,
therefore, appellant's conviction under the POCSO Act is bad in law. The
victim infact eloped with the appellant on her own volition and remained with
him for about nine years. It is difficult to accept that during the long period of
nine years, she had no opportunity to alarm the people and seek help. The
appellant has been falsely arraigned because of subsequent bad relations
developed with the victim. The final hearing of this appeal is not possible in
near future, thus, the remaining jail sentence may be suspended.
The prayer is opposed by Shri Arvind Singh, learned counsel for the
State and Shri Rajput, learned counsel for the objector.
On a specific query from the bench, Shri Rajput fairly admitted that the
victim has already solemnized marriage with some other person, and residing
with him.
In the aforesaid factual backdrop, without expressing any conclusive
opinion on merits of the case, we deem it proper to suspend the remaining jail
Signature Not Verified
sentence of the appellant.
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 6/22/2023
12:50:01 PM
Accordingly, I.A. No.5225 of 2023 is allowed.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of appellant - Kamlesh is hereby suspended and it is
directed that appellant be released on bail on his furnishing a personal bond for
a sum of Rs.30,000/- (Rupees Thirty Thousand only) with one solvent
surety of the like amount to the satisfaction of the trial Court with a further
direction to appear before the trial Court, Harda on 4th September 2023
and also on such other dates as may be fixed by the trial Court in this regard
during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (ACHAL KUMAR PALIWAL)
JUDGE JUDGE
bks
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 6/22/2023
12:50:01 PM
