Madhya Pradesh High Court
Kamlesh @ Kamlapat vs The State Of Madhya Pradesh on 30 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 11673 of 2023
(KAMLESH @ KAMLAPAT Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Dated : 30-05-2024
Shri Ajay Sen - Advocate for the appellant.
Shri Shiv Kumar Shrivastava - Govt. Advocate for the respondent/State.
Heard on I.A.No.8009/2024, which is an application under Section 389
(1) of Cr.P.C., for suspension of sentence and grant of bail to the appellant -
Kamlesh alias Kamlapat.
This appeal is filed being aggrieved of judgment dated 12/04/2023 passed
by learned 3rd Additional Sessions Judge/Special Judge, POSCO Act, Sagar in
Special Case No.SC/148/2021 whereby appellant has been convicted under
Section 376(3) of IPC and sentenced to undergo 20 years RI along with fine of
Rs.5,000/- with default stipulation of two years additional RI, Section 376(2)(n)
of IPC and sentenced to undergo 20 years RI along with fine of Rs.5,000/- with
default stipulation of two years additional RI. Appellant is also convicted under
Sections 3(1)(w)(i) and 3(2)(v) of SC/ST (Prevention of Atrocities) Act and
sentenced to undergo three years RI along with fine of Rs.500/- with default
stipulation of three months of additional RI and life imprisonment along with
fine of Rs.5,000/- with default stipulation of two years additional RI
respectively.
Learned counsel for the appellant submits that prosecutrix is his married
wife. There is an agreement available on record which is Ex.D/2 which reveals
that prosecutrix is married wife of present appellant and because of some
difference of opinion, prosecutirx was taken away by her mother to her parental
home.
It is submitted that overlooking this fact and also the deposition of
mother of prosecutrix i.e. P.W.-4, in the deposition sheet, her age is mentioned
as 55 years. Deposition was recorded on 05/03/2021. In her cross-examination
in para-3, she has admitted that she was married at the age of 13-14 years. She
started giving birth to children from the age of 16-17 years. She admitted that
the difference between her children age is about 1-2 years.
She further admitted that she does not know the date of birth of any of
her children and she does not possess any birth certificate of any of her
children. Thus, when this fact is taken into consideration, then prosecutrix is a
major, therefore, she entered into a wedlock as is evident from Ex.D/1 and D/2.
In Ex.D/2 author of the affidavit on behalf of prosecutrix is her mother.
Thus, it is submitted that prosecutrix is major. She was in consensual
relationship with appellant as she has herself admitted that she had stayed with
appellant when she contacted pregnancy, gave birth to child. Appellant used to
visit her even when she had given birth to child, therefore, lodging of FIR after
entering into a compromise on 11/10/2018 as is evident from Ex.D/2 on
15/06/2019 is nothing but blackmailing tactics. Dr. Swati Reza (PW-1) has
deposed that secondary sexual characters of prosecutrix were developed and
she was a lactating mother having four months old son. It is also submitted by
learned counsel for the appellant that DNA report is also negative.
Shri Shiv Kumar Shrivastava, learned Public Prosecutor, vehemently
opposes the prayer and submits that there is first school entry register which
demonstrates the date of birth of prosecutrix to show that she is minor.
Taking all these facts into consideration and without commenting on
merits, it is evident from Ex.D/2 that marriage was performed between appellant
and prosecutrix and thereafter on account of some misunderstanding, they were
living separatelyh, the application for suspension of sentence is allowed.
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 shall remain suspended and he
shall be released on bail till final disposal of this appeal.
I.A.No.8009/2024, is allowed & disposed of.
Certified copy as per rules.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
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