Chattisgarh High Court
Devendra Sidar vs State Of Chhattisgarh on 6 July, 2022
CRA-1699-2021
[1]
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 1699 of 2021
Devendra Sidar, S/o Fulsingh Sidar, aged about 20 years, Resident of Village
Kachhar, Police Station Bhupdevpur, District Raigarh (Chhattisgarh)
.... Appellant
Versus
State of Chhattisgarh, through Station House Officer, Police of Police Station
Kotra Road, Raigarh, District Raigarh (Chhattisgarh)
.... Respondent
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal &
Hon'ble Shri Justice Sanjay S. Agrawal
06/07/2022 Mr. T.K. Jha, Advocate for the appellant.
Mr. Ashish Tiwari, Panel Lawyer for the respondent-State.
Mr. Satish Singh Thakur, Advocate for the objector.
Heard on IA No.01 of 2021, which is an application filed under Section 389 of
Cr.P.C. for suspension of sentence and grant of bail on behalf of the appellant-
Devendra Sidar.
By impugned judgment of conviction and order of sentence dated 30.10.2021,
the appellant has been convicted for offences: under Sections 363 of IPC and
sentenced to undergo 04 years' rigorous imprisonment with fine of Rs.2,000/-, and
in default of fine, additional rigorous imprisonment of 03 months; under Section 366
of IPC and sentenced to undergo 07 years' rigorous imprisonment with fine of
CRA-1699-2021
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Rs.5,000/-, and in default of fine, additional rigorous imprisonment of 03 months;
under Section 376 of IPC and sentenced to undergo 10 years' rigorous
imprisonment with fine of Rs.15,000/-, and in default of fine, additional rigorous
imprisonment of 06 months and also under Section 06 of the Protection of Children
from Sexual Offences Act, 2012 (POCSO Act) and sentenced to undergo 20 years'
rigorous imprisonment with fine of Rs.20,000/- and, in default of fine, additional
rigorous imprisonment of 06 months (All substantive sentences are directed to run
concurrently).
Mr. T.K. Jha, learned counsel for the appellant submits that the appellant is in
jail since 15.12.2019. He has not committed any offence and has been falsely
implicated. It is urged that the victim was major on the date of offence and she was
the consenting party. By taking this Court to the statement of the victim (PW-01), he
argued that the victim being a major girl has visited the house of the appellant-
accused many times on her own wish and consent, which fact she did not disclosed
to anyone over a span of time. The victim on her own volition was in love
relationship with the appellant-accused and use to have consensual sexual
intercourse with the appellant-accused, due to which, she also became pregnant.
Further, in Para-14 of her cross-examination, the victim has clearly stated that she
wants to solemnize marriage with the appellant. It is further argued that as per
opinion of Dr. Sangeeta Kalar (PW-04), who has medically examined the victim on
14.12.2019, there is no external or internal injury found on the body of the victim
and according to the statement of Dr. Rajesh B. Goswami (PW-10), the age of the
victim is in between 16 to 18 years vide Age Certificate-cum-Radiologist Report
(Ex.P/19) and it can vary 02 years on either side. Even in the FSL report (Ex.P/27),
it has been opined that there is no spot of semen/sperm found either on the vaginal
slides of the victim or in her undergarments.
Learned counsel for the appellant in support of his contention relied on AIR
CRA-1699-2021
[3]
1982 SC 1297, Jaya Mala vs. Home Secretary, Government of Jammu and
Kashmir and others, followed in (2011) 10 SCC 192, Mohd. Imran Khan vs.
State of Government (NCT of Delhi) and submits that the learned trial Court
without appreciating the oral and documentary evidence available on record in its
correct perspective has convicted the appellant for the aforementioned offences by
recording perverse findings, which is contrary to law, thus, appellant be enlarge on
bail by suspending his jail sentence.
Per-contra, Mr. Ashish Tiwari, learned State counsel opposed the application
and submits that date of birth of the victim is 02.04.2003 and the date of incident is
14.12.2019, as such, the victim was 16 years, 08 months and 21 days on the date
of offence. She being minor on the date of offence, therefore, her consent is
inadmissible in the eyes of law. It is further submitted that there is sufficient material
available on record to connect the appellant-accused with the offences and the
learned trial Court has rightly convicted the appellant for the offences
aforementioned and, therefore, the present application deserves to be rejected.
Mr. Satish Singh Thakur, learned counsel appearing for the objector drew our
attention towards an affidavit sworn by the victim herself before this Court, which he
has filed alongwith Covering Memo dated 05.07.2022 (Doc. No.05/2022), wherein it
has been clearly stated that the victim and the appellant herein were in love
relationship with each other for past three years and she wants to solemnize
marriage with the accused-appellant herein.
We have heard learned counsels for the parties, considered their rival
submissions made herein-above and went to the material available on record with
utmost circumspection.
Admittedly, according to the medical examination report of the victim (Ex.P/09)
there were no internal or external injuries found on the body of the victim, but
hymen was ruptured, which fact is duly proved by the statement of Dr. Sangeeta
CRA-1699-2021
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Kalar (PW-04), who has medically examined the victim. Thereafter, the victim was
referred to Dr. Rajesh B. Goswami, MBBS, MD (Forensic Medicine), who has
examined the victim for her age determination by radiology, whereby the age of the
victim was found to be between 16 to 18 years which can vary 02 years on either
side vide Ex.P/19.
The Supreme Court in the matter of Jaya Mala (supra) has held that one can
take judicial notice that the margin of error in age ascertained by radiological
examination is two years on either side, which is followed in later judgment of the
Supreme Court in the matter of Mohd. Imran Khan (supra).
Taking into consideration the facts and circumstances of the case,
submissions made by learned counsels for the parties and the material available on
record, particularly the statement of the victim (PW-01), wherein she has stated
before the Court that she has visited the house of the appellant number of times
and had sexual intercourse with the appellant, which fact she did not informed to
anyone over a span of time and further in Para-14 of her statement she has
specifically stated that she wants to solemnize marriage with the appellant and
same stand has also been taken by the learned counsel for the objector before this
Court coupled with medical evidence available on record i.e. medical examination
report of the victim (Ex.P/09), wherein no internal or external injuries were found on
the body of the victim but hymen was ruptured, which is duly proved by the
statement of Dr. Sangeeta Kalar (PW-04) and the Age Certificate-cum-Radiologist
Report (Ex.P/19), wherein age of the victim was found to be in between 16 to 18
years which can vary 02 years on either side, which is duly proved by Dr. Rajesh B.
Goswami (PW-10) and the FSL report (Ex.P/27), wherein no spot of semen/sperm
has been found either on the vaginal slides or in the undergarments of the victim
and in view of dicta of their Lordships of Supreme Court in the matters of Jaya
Mala (supra) and Mohd. Imran Khan (supra), we are of the opinion that it is a fit
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case for entertaining/allowing appellant's application for suspension of sentence
and grant of bail.
Accordingly, the substantive jail sentence awarded to the appellant- Devendra
Sidar by the learned trial Court is hereby suspended during the pendency of this
appeal and he is directed to be released on bail on his furnishing a bail bond of
Rs.25,000/- (Rupees Twenty Thousand Only) with one surety for the like amount to
the satisfaction of the concerned trial Court, for his appearance before the Registry
of this Court on 12th of September, 2022. He shall thereafter appear before the
concerned 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, interval being not less than 6 months, till the disposal of this appeal.
Consequently, IA No.01 of 2021 is allowed.
However, it is made clear that observation made by us herein-above are only
for the purpose of deciding application for suspension of sentence and grant of bail
(i.e. IA No.01 of 2021) and this Court has not expressed any opinion on the merits
of the case.
Sd/- Sd/-
(Sanjay K. Agrawal) (Sanjay S. Agrawal)
Judge Judge
[email protected]
