Madhya Pradesh High Court
Kamlesh @ Kalu @ Vinayak vs The State Of Madhya Pradesh on 21 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 5614 of 2023
(KAMLESH @ KALU @ VINAYAK Vs THE STATE OF MADHYA PRADESH)
Dated : 21-02-2024
Shri Shadab Khan - Advocate for the appellant.
Shri K. K. Tiwari - Government Advocate for the respondents State.
Heard on I.A.No.14608/2023, which is the first application filed under
Section 389(1) of Cr.P.C. for suspension of jail sentence and grant of bail
moved on behalf of the sole appellant Kamlesh @ Kalu @Vinayak S/o
Jagdish.
2 . The appellant stands convicted vide judgment dated 03.04.2023
passed by Special Judge POCSO Act, District Ratlam (MP) in Special Case
No. 23/2022 for offence punishable under Section 5 (L) R/W 6 of POCSO Act
and sentenced to undergo twenty years RI with fine of Rs.1,000/- and under
Section 366 of IPC and sentenced to undergo ten years R.I with fine of
Rs.1000/- with default stipulations.
3. Prosecution story in brief is that the mother of the prosecutirx lodged
FIR at police station stating that prosecutrix went to school and did not return
back. She searched for the prosecutrix but could not foudn her. She has
doubted that the accused/appellant might taken her away. Police recovered the
prosecutrix and recorded her statement and arrested the appellant and after due
investigation filed a charge sheet before the trial Court. Thereafter, appellant
was tried before the trial Court and leaned trial Court convicted the appellant for
the above offences.
4 . Learned counsel for the appellant submits that the appellant has not
committed the offence and he has falsely been implicated in the case. The
police recovered the prosecutrix and recorded her statement and after arrest
charge sheet was filed and trial commenced. During the trial the prosecutrix has
not supported the prosecution case and has not stated anything against the
appellant and as per her statement it appears that she went along with the
appellant as per her own will. In the medical report also there is no sign of
commission of rape. There is no truthful evidence regarding the actual date of
birth of the prosecutrix and as per the statement of the parents of the victim
they have not submitted any documents at the time of admission to certify the
age of the prosecutrix and the mother of the prosecutrix (PW-6) in her
statement has clearly stated that the prosecutrix is major and capable to give her
consent, but the trial Court has not appreciated all these facts and convicted the
appellant. Final hearing of this appeal is not possible in near future therefore, it
is prayed that the remaining jail sentence may be suspended and appellant may
be released on bail.
5 . Per contra, learned Government Advocate for the respondent State
has opposed the prayer and prayed for its rejection on the ground that the trial
Court has appreciated the evidence in the right prospective and, therefore, no
case for suspension is made out and hence, the appellant is not entitled to be
released on bail.
6. We have heard learned counsel for the parties and perused the record.
7. Having considered the rival submissions and having gone through the
statement of the witnesses. As per the FSL report no semen was found in the
slide and undergarments of the prosecutrix. DNA profile was not done and
looking to the tender age of the appellant being 22 years, without expressing
any opinion on the merits of the case, we deem it fit to suspend the remaining
jail sentence of the appellant.
8. Accordingly. IA No. 14608 of 2023 is allowed and it is directed that
subject to deposit of fine amount, if not already deposited, and on furnishing
personal bond in the sum of Rs.50,000/- (Rupees Fifty thousand only) with a
solvent surety to the satisfaction of Trial Court, for his appearance before the
Registry of this Court firstly on 19.08.2024 and on all other subsequent dates,
as may be fixed by the Registry in this behalf, the execution of substantial jail
sentence imposed on the appellant Kamlesh @ Kalu @Vinayak S/o Jagdish
shall remain suspended, till final disposal of this appeal.
List in due course.
C.C as per rules.
(S. A. DHARMADHIKARI) (DEVNARAYAN MISHRA)
JUDGE JUDGE
rashmi
