Sayan @ Falguni Bauri vs The State Of West Bengal & Anr
2022 Latest Caselaw 1997 Cal

13.04.2022 Item No.04 Suman Ct.42

CRA 128 of 2021 With CRAN 2 of 2021 With CRAN 3 of 2022

In Re: An application for bail/suspension of sentence under Section 389(2) of the Code of Criminal Procedure in connection with Special Case No.6 of 2018 arising out of Indpur Police Station Case No.18 of 2018 dated 07.03.2018.

And

In the matter of: Sayan @ Falguni Bauri Vs.

The State of West Bengal & Anr.

Mr. Dipankar Dandapath ...for the appellant

Mr. Narayan Prasad Agarwala Mr. Pratick Bose ...for the State

In re:- CRAN 3 of 2022

This is an application for suspension of sentence and

bail of the petitioner during pendency of the instant

appeal.

The petitioner was convicted under Section 4 of the

POCSO Act. Learned advocate for the petitioner submits

that admittedly the petitioner was 16 years old at the

time of alleged occurrence. The appellant is a young boy

of 19/20 years. The mother of the victim admitted

during cross-examination that the victim had love affair

with the petitioner. As a result of which there was

cohabitation between the parties. When the

appellant/petitioner refused to marry the victim, the

complaint was lodged in the local P.S. On the basis of

which a police case was registered and subsequently at

the end of the trial the accused was convicted for

committing offence under Section 4 of the POCSO Act. It

is also submitted by the learned P.P.-in-charge that the

physical relationship between the victim and the

petitioner was consensual. In the written complaint the

de facto complainant could not state when and how the

offence was committed because of the fact that both the

parties on their consent and volition cohabited. The

victim reached the age of discretion at the time of

occurrence. Therefore, he may be released on bail.

Learned P.P.-in-charge has raised serious objection

against the prayer for bail on the ground that the victim

was a minor at the time of commission of offence. In a

case of offence under Section 4 of the POCSO Act

prosecution is under obligation to prove that there was a

penetrative sexual assault upon the minor by the

accused. Consent or no consent is immaterial in a case

under the POCSO Act. It is also submitted by the

learned P.P.-in-charge that the ocular testimony of the

victim girl corroborated with the medical evidence.

Therefore, the appellant was rightly convicted and

considering the gravity of the offence he has endorsed

his objection against the prayer for bail.

Having heard the learned advocates for the parties

and on perusal of the impugned judgment it is

ascertained that the petitioner was sentenced to seven

years rigorous imprisonment. Out of the said seven

years of imprisonment he is in custody for approximately

two years and seven months. Considering the period of

detention and in view of the fact that the impugned

judgment is under challenge in the instant appeal I am

inclined to release the petitioner on bail pending disposal

of the appeal.

Accordingly, the petitioner is enlarged on bail of

Rs.20,000/- with two sureties of like amount to the

satisfaction of the learned Special Judge under the

POCSO Act, Khatra, Bankura with further condition that

if on bail, he must attend the trial Court once in a

fortnight till disposal of the instant appeal.

If the petitioner violates the above condition, the

order of bail shall be cancelled without further reference

to this Bench.

The application is, thus, disposed of.

The matter be listed on 3rd May, 2022 under the

heading 'To Be Mentioned' and the learned advocate for

the appellant is requested to collect certified copies of all

the exhibited documents in the meantime so that the

instant appeal may be heard dispensing with the

formality of preparation of paper book.

(Bibek Chaudhuri, J.)