Chamanlal Kushwaha vs The State Of Madhya Pradesh
2024 Latest Caselaw 21293 MP

Madhya Pradesh High Court

Chamanlal Kushwaha vs The State Of Madhya Pradesh on 6 August, 2024

Author: Vivek Agarwal

Bench: Vivek Agarwal

                                                               1                               CRA-140-2024
                                          IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                         CRA No. 140 of 2024
                                      (CHAMANLAL KUSHWAHA Vs THE STATE OF MADHYA PRADESH AND OTHERS )



                           Dated : 06-08-2024
                                    Shri Ashutosh Joshi, Advocate for the appellant.
                                    Shri Arvind Singh, Govt. Advocate for the respondent - State.

Heard on I.A.No.122/2024, which is an application under Section 389(1) of Cr.P.C., for suspension of sentence and grant of bail to the

appellant-Chamanlal Kushwaha S/o Mangal Prasad Kushwaha.

Appellant - Chamanlal Kushwaha, is aggrieved of the judgment dated 31.10.2023, passed by the learned Special Judge (POCSO Act, 2012), District Anuppur (M.P.), in SC/3100011/2020, whereby, appellant has been convicted for offence punishable under Sections 5(L)/6 alternatively Sec.376(2)(n) of POCSO Act, Sections 363 & 366 of IPC and sentenced to undergo R.I. for 10 years, 5 years, 5 years, with fine amount of Rs.5000/-, Rs.1,000/- and Rs.1,000/-, respectively, with default stipulation, on each count.

Reading from evidence of PW/2, father of the prosecutrix, it is submitted that he has admitted that he has three daughters. Eldest daughter was married in the year 2013. Court has noted a fact that witness had counted on fingers and then given reply. Thereafter, he deposed that prosecutrix is 4 and half years younger to the eldest daughter. Thus, there will be a presumption that eldest daughter at the time of marriage in 2013,

2 CRA-140-2024 was 18 years of age i.e. prosecutrix was 13 and half years of age. Therefore, with lapse of six years time, she was above 18 years of age because father has admitted that prosecutrix was admitted in school by her 'Nani' and she had recorded date of birth by estimation and not actual date of birth. Thus, appellant has been able to create a reasonable doubt as to the correctness of the date of birth of the prosecutrix. It is submitted that appellant remained in custody from 01.07.2020 to 09.03.2022 and from the judgment till date. It is pointed out that DNA report is inconclusive because no male chromosome was found from any of the sources of the prosecutrix. There are good chances of success. Hence, prayer is made to suspend the remaining jail sentence of the appellant and release him on bail.

Shri Arvind Singh, learned Govt. Advocate opposes the prayer of the appellant.

Taking these facts into consideration, fact of incarceration and the fact that DNA report is inconclusive because no male chromosome was found from any of the sources of the prosecutrix, it is directed that on depositing the fine amount, if not already deposited and on furnishing a personal bond to the tune of Rs.50,000/- (Rupees Fifty Thousand Only), with two solvent sureties in the like amount to the satisfaction of the Trial Court for his appearance before the Trial Court on 20.12.2024 and such other dates as may be fixed by the Trial Court, the execution of remaining part of the jail sentence imposed upon Appellant - Chamanlal Kushwaha shall remain suspended and he shall be released on bail till final disposal of this appeal.

3 CRA-140-2024 I.A.No.122/2024, is allowed & disposed of.

Certified copy as per rules.

                                     (VIVEK AGARWAL)                        (AVANINDRA KUMAR SINGH)
                                          JUDGE                                      JUDGE

                           A.Praj.