Madhya Pradesh High Court
Kamlesh Markam vs The State Of Madhya Pradesh on 16 February, 2024
Author: Sujoy Paul
Bench: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 7401 of 2023
(KAMLESH MARKAM Vs THE STATE OF MADHYA PRADESH)
Dated : 16-02-2024
Shri Abhinav Dubey - Advocate for the appellant.
Shri Akhilendra Singh - Government Advocate for the respondent-State.
Shri Naveen Shukla- Advocate for the objector,
Heard on I.A. No 16922 of 2023 application under Section 389(1) of
the Cr.P.C for suspension of sentence and grant of bail to appellant -Kamlesh
Markam arising out of judgment dated 09.05.2023 delivered in ST No. 12/2022
by IVth Additional Sessions Judge, Betul,M.P.
The appellant has been convicted and sentenced for the offence
punishable under Sections 376, 366 323 & 506 of IPC and sentenced to
undergo life imprisonment with fine of Rs.5000/-, R.I. for five years with fine of
Rs.3000/-, R.I. for one year with fine of Rs.1000/- and R.I. for two years with
fine of Rs.2000/- respectively with default stipulations.
Learned counsel for the appellant submits that appellant is in actual jail
custody since 12.09.2021. It is stated that as per prosecution version, the
appellant is alleged to have made board the victim on his motor cycle on the
pretext of returning some money and then forcibly took her to a isolated place,
despite her objection and in that isolated place he is alleged to have have caused
sexual assault on the victim in terms of Section 376 of IPC.
Learned counsel for the appellant further submits that the prosecution
version is that the act has been committed with use of force by the present
appellant and in the process hair of the victim are stated to be uprooted and
bangles are stated to be broken. However, in the M.L.C. Ex. P/4 there is no
injury on the private part and the doctor has opined that no definite opinion can
be given for sexual assault. It is further argued that the DNA report indicates
presence of DNA in the vaginal slide of the victim but the said DNA did not
match with that of the appellant. Learned counsel for the appellant further
argues that the victim in para 35 of her deposition has clearly deposed that the
act with the present appellant was with consent. Thus, it is stated that the case
against the present appellant is false and he deserves to be given the benefit of
suspension of sentence. The appeal is of the year 2023. Final hearing is not
possible in new future.
The prayer is opposed by learned Government Advocate on the basis of
objection.
Learned counsel for the objector has pointed out to subsequent FIR Ex.
P/53 and submits that the admission in para 35 of the cross examination of the
victim was procured by duress and threat. It is further stated that there is video
of the act committed on the victim. However, it is not disputed that the video
does not indicate the face of the present appellant.
Learned counsel for the appellant further submitted that the trial court
vide order dated 26.04.2022 in course of trial refused to recall the victim on the
basis of the said subsequent FIR.
Considering the aforesaid factual backdrop and bleak chances of final
hearing in near future, without expressing any conclusive opinion on the merits
of the case, we deem it proper to suspend the remaining jail sentence of
appellant.
Accordingly, I.A. No.16922/2023 is allowed and disposed of.
Subject to depositing the fine amount (if not already deposited), the
remaining jail sentence of this appellant is hereby suspended and it is directed
that appellant - Kamlesh Markam 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, Betul o n 24 April
2024 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) (VIVEK JAIN)
JUDGE JUDGE
MISHRA
