Rakesh Kumar Prajapati vs State Of Chhattisgarh
2022 Latest Caselaw 1582 Chatt

              HIGH COURT OF CHHATTISGARH, BILASPUR

                                 Order Sheet

                            CRA No. 277 of 2020

 Rakesh Kumar Prajapati S/o Baisakhu Prajapati, aged about 22 years, Resident of
 Village: Dhekonabhatha, Police Station: Dabhra, District : Janjgir-Champa,
 Chhattisgarh

                                                                       ---- Appellant

                                    Versus

 State of Chhattisgarh through the Station House Officer, Police Station
 Bhoramdev, District : Kawardha (Kabirdham), Chhattisgarh

                                                                     ---- Respondent

25.03.2022 Mr. C.K. Kesharwani, Counsel for the appellant.

Mr. C.B. Kesharwani, P.L. for the State/Respondent.

None present for victim though notices have been served upon

her mother Kalavati (PW-9).

Heard I.A. No. 01/2021, an application for suspension of

sentence and grant of bail to the appellant.

The instant is the second bail application for suspension of

sentence and grant of bail to the appellant.

First bail application was dismissed as withdrawn with liberty to

revive the same after one year vide order dated 28.05.2020.

By the impugned judgment date 22.01.2020 passed in Special

Case No.41/2018 by the learned Special Judge, POCSO Act, 2012, Fast Track Court, Kabirdham (C.G.), the appellant stands convicted

as mentioned below:

     Conviction                Sentence                 In Default

U/s 363 of IPC           RI for 5 years with a In default of payment
                         fine    amount     of of     fine    amount
                         Rs.500/-.             additional RI for 1
                                               month.

U/s 366 of IPC           RI for 5 years with a In default of payment
                         fine    amount     of of     fine    amount
                         Rs.500/-.             additional RI for 1
                                               month.

U/s 6 of the POCSO RI for 10 years with a In default of payment Act, 2012 fine amount of of fine amount Rs.5,000/-. additional RI for 2 months.

All the sentences awarded to the appellant shall run concurrently.

Learned counsel for the appellant submits that the appellant

has been wrongly convicted by the Trial Court in the judgment without

there being any sufficient and clinching evidence available on record.

From the admissions made by the victim, it is well established that

she was a consenting party, she herself left her house and resided at

various places along with the appellant. With regard to the age of the

victim, it is submitted by the counsel that father and mother of the

victim, PW-8 and PW-9 were not able to state exact date of birth of

the victim. Father of the victim has admitted the fact that at the time of

admission of the victim in the school, in Class I, the victim was aged about 6 to 7 years. The victim also admitted that in the year 2015-16,

she was studying in Class 10 th therefore, it is well established that at

the time of incident i.e. in the year 2019, the victim was aged about 18

years. Since, she was the consenting party, and at the time of incident

she was more than 18 years of age, therefore, conviction of the

appellant is not sustainable. Hence, it is prayed that appellant be

granted bail.

On the other hand, learned counsel for the State has opposed

the bail application and submissions made in this respect. He submits

that on the basis of injuries, the trial Court has rightly arrived on the

conclusion that the victim was below 18 years of age, therefore, the

appellant has rightly been convicted.

I have heard both the parties.

Perused the record of trial Court and gone through the

statements of victim and her parents.

On due consideration, I am of the view that in this case, the

application submitted on behalf of the appellant be allowed.

Accordingly, I.A. No.1/2021 is allowed.

Execution of substantive jail sentences imposed upon the

appellant shall remain suspended during the pendency of this appeal

and he shall be released on bail on executing a personal bond for a

sum of Rs.25,000/- with one solvent surety for the like sum to the

satisfaction of the Trial Court for his appearance before the Registry of this Court on 02.09.2022. 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 the disposal of this appeal.

List this case for final hearing in due course.

Sd/-

(Arvind Singh Chandel) Judge

Saurabh