Calcutta High Court (Appellete Side)
Sanjit Kumbhakar vs Unknown on 1 March, 2021
28.
01-03-2021
AD/kole
CRA No.695 of 2019
with
IA No. CRAN 2 of 2019 (Old No. CRAN 4937 of 2019)
In re: An application under Section 389 (1) of the Code of
Criminal Procedure filed on 19-12-2019 being IA No. CRAN 2
of 2019 (Old No. CRAN No. 4937 of 2019).
-And-
In the matter of : Sanjit Kumbhakar
.... Appellant.
Mr. Ayan Bhattacharjee
Mr. Kunal Ganguly
... For the appellant
Mr. Abhra Mukherjee,
Mr. D. Mahata
... For the State.
Re : IA No. CRAN 2 of 2019 (Old No. CRAN 4937 of
2019)
1.
We have heard learned Counsel for the appellant
in this application seeking an order for suspension of
sentence and grant of bail pending appeal against and order
of conviction and sentence handed down for offences found
to be punishable under Section 363 of the IPC and Section
6 of the POCSO Act. We have also heard learned Counsel
for the State opposing the prayer for suspension of sentence
and grant of bail.
2. On 16.11.2016 an FIR appears to have been lodged
alleging that the victim girl is missing since 10.11.2016.
No compliant was apparently made by the complainant of
that FIR as to any deficit in investigation though the
evidence on record, in its sequence, including the statement
of the victim girl shows that the victim and the accused
cohabited leading to the birth of a child, which was
delivered through the hospital, the records of which form a
part of defence evidence produced and proved through the
father of the accused. Thereafter, sometime in late 2018
the issues between the girl and the accused appeared to
have snowballed into disputes leading to allegations by the
girl that the accused had been physically abusing her.
Whatever be the recourse that was adopted, the net result
was that the FIR of November, 2016 was apparently
resurrected leading to the investigation concluding and a
charge-sheet being made for offences punishable.
3. Considering the material evidence on record in the
backdrop of the nature of facts and the quality of
allegations levelled, it also tends to indicate that the
accused, apart from, whatever he had to do with the victim
girl, was otherwise married and had children, he was the
tutor of the victim girl who was in the 12th class.
4. However, the type of legislation and the quality of
allegation which would lead to an order of conviction and
sentence on the counts mentioned would call for fairly
rigorous look in terms of legal evidence. There is no
evidence regarding the age of the victim being proved
through any document relating to the date of birth through
the entries in the register maintained by the school where
she studied, though the age stated to have been shown in
the secondary school admit card as recovered by the Police
during the course of search was attempted to be relied on to
provide evidence regarding the date of birth of the victim
girl. The quality of such evidence to the admissibility of
such material would call for examination in the appeal as
well along with the comparable acceptability of the
documents from the hospital where the victim girl delivered
the child may also be relevant.
5. The spread out gap of time between the FIR and
the ultimate final report culminating in the accused being
charge-sheeted for the offence under the POCSO Act and
charge-sheeted for the offence under the POCSO Act and
under Section 363 IPC may be of relevance while the
deciding appeal.
6. Examining the impugned judgment in the
backdrop of the evidence on record and the quality of
evidence rendered by the Learned Additional Sessions
Judge, we are of the view that the appellant has to be taken
to the establishment of a strong prima facie case of
possibility of complete or partial success in the appeal.
7. Accordingly, we direct that the appellant shall be
released on bail upon furnishing a bond of Rs.10,000/-
(Rupees Ten thousand only) with two sureties of like
amount each, one of whom must be a local surety, to the
satisfaction of learned Additional District And Sessions
Judge, Raghunathpur, Purulia, on condition that he shall
report to the Officer-in-Charge of the concerned Police
Station every fortnight and shall not involve with the affairs
of the victim or her family and homestead or in any
incriminating activity in any manner whatsoever till the
disposal of this appeal unless otherwise ordered and further
that the appellant shall be personally present or be
represented before this Court when the appeal is taken up
for hearing. If any of the conditions imposed on the
appellant are not complied with or are found to have been
breached, order of suspension of sentence, that is being
granted hereby, could be cancelled or be recalled.
8. List the appeal for hearing as and when the same
becomes ready for hearing.
9. The application being IA No. CRAN 2 of 2019 (Old
No. CRAN 4937 of 2019) is, thus, disposed of.
10. Criminal Section is directed to supply urgent
photostat certified copies of this order to the parties, if
applied for, upon compliance of all necessary formalities.
( Thottathil B. Radhakrishnan, C.J. )
( Shampa Sarkar, J. )
