Pannalal Khute vs State Of Chhattisgarh
2022 Latest Caselaw 7532 Chatt

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                    HIGH COURT OF CHHATTISGARH, BILASPUR
                                      Order Sheet
                                 CRA No. 1413 of 2022
Pannalal Khute, S/o Motilal Khute, Aged About 18 Years, 02 months, R/o Jhumrpali,
P.S.- Bhatgaon, District - Baloda - Bazar - Bhatapara (C.G.)
                                                                         ---- Appellant
                                         Versus
State of Chhattisgarh, Through Station House Officer, P.S.- Bhatgaon, District- Baloda -
Bazar - Bhatapara (C.G.)
                                                                       ---Respondent

13.12.2022 Mr. Hemant Gupta, counsel for the appellant.

Mrs. Ishwari Ghritlahre, Panel Lawyer for the State/respondent. Heard on application for suspension of sentence and grant of bail to the appellant.

By the impugned judgment dated 03.08.2022 passed by the learned Additional Sessions Judge, F.T.S.C. (POCSO Act), Balodabazar (C.G.) in Special Criminal Case (POCSO) No. 58/2020, the appellant stands convicted, as under:-

                    Conviction                              Sentence
              U/s 363 of IPC           : R.I. for 5 years and fine of Rs. 500/-.
              U/s 366 of IPC           : R.I. for 5 years and fine of Rs. 500/-.
              U/s 4 of POCSO Act      : R.I. for 10 years and fine of Rs. 1000/-
                                         (In default of payment of fine amount, 6-6
                                         months of R.I. more for each section)
                                         (Fine amount has not been deposited before
                                         the Court below)
                                         (All the sentences to run concurrently)

Learned counsel for the appellant would submit that the prosecutrix in her cross-examination has stated about sexual intercourse, which has been done with her consent. He would further submit that the Dakhil Kharij register has not been proved in accordance with Section 35 of the Evidence

Act. He would also submit that witness (PW-7) has stated that the date of birth of the prosecutrix has been recorded by headmaster namely Saitode and she has not made entry in the Dakhil Kharij register, therefore, the same is non-compliance of Section 35 of the Evidence Act, as such, the finding recorded by the trial Court that the appellant is below age of 18 years, is perverse and contrary to the record. He would also submit that the appellant has already suffered 2 years and 4 months of jail sentence and there is no likelihood of the appeal coming up for final hearing in the near future, hence, it is prayed that the application be allowed and the appellant may be released on bail.

Learned State counsel opposes the bail application and submitted that the prosecution has proved the case beyond reasonable doubt and after appreciating the evidence and material on record, the appellant has rightly been convicted, therefore, the appellant is not entitled for grant of bail.

In compliance of direction issued by this Court, the State has issued notice to the prosecutrix for her appearance before this Court today i.e. on 13.12.2022, but neither the prosecutrix nor her representative is present before this Court even in the second round, therefore, this Court is proceeding with the documents available on record.

Considering the statement of the victim wherein she has stated at paragraph 8 & 9 that the appellant has made sexual intercourse with her consent, date of birth of the prosecutrix has not been proved as per law and also considering the fact that the appellant has already suffered 2 years & 4 months of jail sentence out of total sentence i.e. 10 years awarded to the appellant and the appeal being of the year 2022, final hearing of the same will likely to take time, I am inclined to suspend the sentence of the appellant and release him on bail.

Accordingly, application for suspension of sentence and grant of bail is allowed and it is directed that execution of further substantive jail sentence of the appellant shall remain suspended and he shall be released on bail on his executing a personal bond in sum of Rs. 25,000/- with one surety in the like sum to the satisfaction of trial Court for his appearance before the Registry of this Court on 8th February, 2023. 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 the disposal of this appeal.

It is made clear that the date given by the trial Court for appearance of the appellant should not have interval of more than 90 days.

List this appeal for final hearing in its chronological order.

Sd/-

(Narendra Kumar Vyas) Judge

Arun