Amar Singh @ Kallu Yadav vs The State Of Madhya Pradesh
2023 Latest Caselaw 15559 MP

                                   1
            IN THE HIGH COURT OF MADHYA PRADESH
                         AT GWALIOR
                            CRA No. 8443 of 2022
             (AMAR SINGH @ KALLU YADAV Vs THE STATE OF MADHYA PRADESH)

Dated : 21-09-2023
      Shri Amit Goswami, learned counsel for the appellant.

      Shri Rajesh Shukla, learned Additional Advocate General for the
respondent-State.

Heard on I.A. No.15663 of 2023, first application under Section 389(1) of Cr.P.C. moved on behalf of sole appellant- Amar Singh @ Kallu.

Appellant stands convicted under Section 3 r/w Section 4(2) of POCSO

Act and sentenced to undergo Life Imprisonment with a fine of Rs.10,000/- and under Section 366-A of IPC and sentenced to undergo 10 years' RI with a fine of Rs.5,000/- with default stipulations respectively vide judgment of conviction and order of sentence dated 18th July, 2022 passed by Sessions Judge, Sheopur in Sessions Trial No.28/2021.

The appellant so far has undergone jail sentence of 02 years and 07 months.

As per prosecution story, on 05-02-2021 an FIR was lodged at Police Station Avada, District Sheopur by the complainant alleging that on 02-02-2021

at around 09 in the night, he went to farm leaving his wife and two children including prosecutrix at home. When he returned home in the morning, her wife told him that she did not find the prosecutrix in the room when she woke up. Thereafter, they searched out the prosecutrix extensively but could not trace her. On the basis of aforesaid, FIR was registered and upon completion of investigation, challan was filed and the case was committed to the Sessions Trial. The Sessions Court on proper appreciation of evidence placed on record

convicted and sentenced the present appellant as referred above.

Learned counsel for the appellant while taking exception to the impugned judgment interalia submits that it is a case of false implication. In fact, appellant and prosecutrix were known to each other. She used to visit the house of the appellant in the village to meet him and talk to him on mobile phone. Prosecutrix had gone with the appellant on her own volition. The abovesaid facts have been admitted by the prosecutrix in her statement under Section 164 of Cr.P.C. as well discussed in paragraph 21 of the impugned judgment. Besides, in para 32 of the impugned judgment, Dr. Rekha Jain (PW-

4) has opined that there was no external or internal injury and her hymen was

old torn and healed. Learned counsel also submits that school certificate produced by the prosecution to ascertain the age of the prosecutrix is false and fabricated as prosecutrix had never gone to school. Besides, appellant has already suffered 02 years and 07 month incarceration. The appeal is of the year 2022 and there is no likelihood of early hearing of this appeal in near future. Under such circumstances, learned counsel submits that the present appellant may be extended the benefit of suspension of sentence and grant of bail.

Per contra, learned Additional Advocate General for the State opposes the application while supporting the impugned judgment and submits that as per the admission register of the school of prosecutrix (Ex.P-7), her date of birth is 30-04-2006 as discussed in para 8 of the impugned judgment therefore, she was minor at the time of incident. However, he did not deny the medical count.

Upon hearing learned counsel for the parties, though this Court refrains from commenting upon the rival contentions so advanced touching the merits of the case, but regard being had to the fact that present appellant has undergone 02 years and 07 months incarceration, in the obtaining facts and circumstances

and looking to the fact that the appeal is of the year 2022 and there is no likely to be decided in the near future, we are of the view that present appellant is entitled to the benefit of suspension of sentence and grant of bail.

Accordingly, the I.A. stands allowed and it is directed that the jail sentence of appellant shall remain suspended during pendency of the present appeal and he shall be released on bail subject to verification of the factum of depositing the fine amount and on his furnishing a personal bond in the sum of Rs.1,50,000/- (Rupees One Lac and Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the Trial Court.

Appellant is directed to appear before the Registry of this Court, first, on 29-11-2023 and on other subsequent dates as may be fixed in this behalf.

Accordingly, the said IA stands allowed and disposed of.

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

Certified copy as per rules.

       (ROHIT ARYA)                                   (ROOPESH CHANDRA VARSHNEY)
          JUDGE                                                  JUDGE

  vc

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        Date: 2023.09.22 11:11:50 +05'30'