Shivshankar Mishra vs State Of Chhattisgarh
2021 Latest Caselaw 3785 Chatt

                 HIGH COURT OF CHHATTISGARH, BILASPUR
                                 CRA No. 1542 of 2019
   Shivshankar Mishra S/o Shri S. Kumar Mishra Aged About 20 Years R/o
    Village Bojha Chowki Khadgawan, Police Station Pratappur, District Surajpur,
    Chhattisgarh
                                                                      ---- Appellant
                                      Versus
   State Of Chhattisgarh Through- Station House Officer, Police Station
    Bhatgaon, District Surajpur, Chhattisgarh
                                                                   ---- Respondent

17/12/2021 Mr. Nishikant Sinha, Counsel for the Appellant.

Mr. Ravish Verma, Government Advocate for the Respondent/State.

Heard on IA No. 01/2021 for suspension of sentence and grant of bail to the Appellant.

This is the second bail application for suspension of sentence and grant of bail to the Appellant. First bail of the Appellant was dismissed as withdrawn with liberty to file a fresh after one year vide order dated 26.08.2020.

By the impugned judgment dated 18/10/2019, passed by the learned Additional Sessions Judge (FTC), Surajpur(C.G.), in Special Criminal Case No. 43/2017, the Appellant stands convicted for the offence punishable under Section 376 of the IPC and Section 4 of the POCSO Act 2012 and sentenced to undergo RI for 10 years and to pay fine of Rs. 1,000/- and RI for 10 years and to pay fine of Rs. 1,000/- respectively, with default stipulations.

Learned counsel appearing for the Appellant submits that the Appellant has wrongly convicted by the Trial Court without there being any reliable evidence available on record. He further submits that on perusal of statement of the prosecutrix, it appears that she was a consenting party in the alleged act. With regard to the age of the prosecutrix, there is no conclusive evidence available on record on the basis of which it can be establish that at the time of alleged incident, she was aged below 18 years, therefore, conviction of the Appellant is not sustainable. The Counsel lastly submits that the Appellant is in custody since 17.10.2017 and the appeal is likely to take some time to finalize, therefore, it is prayed that the Appellant may be released on bail.

On the other hand State counsel opposes the bail application and submits that from the entries of Dakhil Kharij Panji of prosecutrix and statements of her parents, it is well established that at the time of alleged incident, she was below 18 years of age, therefore, the Trial Court has rightly convicted the Appellant.

I have heard learned counsel appearing for the parties, gone through the statement of prosecutrix and other material available on record.

On perusal of statement of the prosecutrix, it appears that she was a consenting party in the alleged act. With regard to the age of prosecutrix, considering the admissions made by father Shri Hospital (PW-9), mother Vimla Mishra (PW-4) and brother Praveen Mishra (PW-11) of the prosecutrix, and further considering the fact that the Appellant is in jail since 17.10.2017, without further commenting on other merits of the case, I am inclined to release the Appellant on bail.

Accordingly, the bail application is allowed.

It is directed that the substantive jail sentence imposed upon the Appellant shall remain suspended during the pendency of this appeal and he shall be released on bail on his furnishing a personal bond for a sum of Rs. 20,000/- with one surety in the like sum to the satisfaction of the Trial Court for his appearance before the Registry of this Court on 07.02.2022. He shall thereafter appear before the Trial Court on a date to be given by the Registry of this Court and shall continue to appear there on all such subsequent dates as are given to him by the said Court, till disposal of this appeal.

List this case for final hearing in due course. Shubham Sd/-

(Arvind Singh Chandel) Judge