Calcutta High Court (Appellete Side)
Subhamay Nandi @ Shuvomoy vs Unknown on 6 April, 2021
06.04.2021
Mithun
Sl. No.13.
D/L.
Ct.No.30.
IA No: CRAN/1/2020 (Old No.CRAN/1530/2020),
(application not in file), CRAN/2/2021.
in
CRA/93/2020
In re: An application under Section 389(1) of the Code of
Criminal Procedure, 1973 in connection with
POCSO Case No.01 of 2017 corresponding to
POCSO Sessions Trial No.01/2017 arising out of
Islampur Police Station Case No.1525 of 2014.
In the matter of : Subhamay Nandi @ Shuvomoy
Nandi.
...the petitioner.
Mr. Apalak Basu, Adv,
Mrs. Pritha Bhaumik Basu, Adv.,
Ms. Snehal Seth, Adv.
... for the petitioner.
Mr. Sudip Ghosh, Adv.,
Mr. Bitasok Banerjee, Adv.
...for the State.
The appellant was convicted for committing offence under
Section 4 of the POCSO Act and sentenced to undergo
imprisonment for 7 years with fine coupled with default clause.
The instant application is for bail of the accused/petitioner.
It is ascertained from the impugned judgment as well as the
evidence adduced by the witnesses that the alleged incident took
place on 11th August, 2014 at about 3:30/4:00 am.
It is the case of the prosecution that the victim being the
minor girl of 14 years was ravished and then thrown away
outside the boundary wall of their house on the road.
Learned Advocate for the petitioner submits that the
prosecution failed to establish during trial that the accused called
the victim over phone on the date of occurrence at about
3:30/4:00 am. It is also submitted by the prosecution that from
the evidence on record it appears that a talk of marriage was
going on between the victim and the accused and the accused
denied her to marry. The instant case may be a counter-blast of
such denial. At the same time it is submitted by him that if at
all the victim had physical relationship with the accused on the
date and time of occurrence, such incident must be treated as
consensual sex considering the nature of injury and existence of
old rapture of hymen of the victim found by the Medical Officer
on the date of occurrence. It is also submitted by the learned
Advocate for the petitioner that as per the admission register,
the victim's age was recorded as on 22nd July, 2019 but the
ossification test report, the victim's age was assessed between
17 years and 19 years. Considering all such aspects of the
matter and in view of the fact that the appellant never misused
the conditions for bail during trial. He should be released on bail
during pendency of the instant appeal.
Learned P.P.-in-Charge has raised vehement objection
against the prayer for bail considering the nature and gravity of
offence.
The appellant has prima facie taken two contradictory
defence. First, the accused denied the victim to marry, so he
was falsely implicated and secondly, if at all any physical
relationship was established between the parties, this was
consensual in nature. Both the defence cannot go side by side
together. If someone denies to marry a girl, it is hard to believe
that the said man and the girl will establish physical relationship
on mutual consent. I have gone through the impugned
judgment. At this stage, I find sufficient materials against the
appellant and accordingly, I am not inclined to release him on
bail. Prayer for bail is considered and rejected.
S.O., Criminal Appeal Section is directed to call for the
lower court records at the earliest and prepare the paper book
expeditiously within six weeks from the date of communication
of this order.
A copy of this order be sent to the S.O., Criminal Appeal
Section for compliance.
(Bibek Chaudhuri, J)
