Omprakash Nishad vs State Of Chhattisgarh
2022 Latest Caselaw 6898 Chatt

                       HIGH COURT OF CHHATTISGARH, BILASPUR
                                  Order Sheet
                                   CRA No. 200 of 2022
  Omprakash Nishad S/o Ramayan Nishad Aged About 22 Years R/o Village- Khapari,
   Chowki- Gidhpuri, P.S. Pallari, District- Balodabazar-Bhatapara (C.G.)
                                                                         ---- Appellant.
                                          Versus
  State of Chhattisgarh Through- Station House Officer, P.S. Pallari, District-
   Balodabazar-Bhatapara (C.G.)
                                                                       ---- Respondent

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17-11-2022 Mr. Hemant Gupta, counsel for the appellant.

Mr. B.L Sahu, PL for the State.

Heard on I.A.No.1 of 2022 which is an application for suspension of sentence and grant of bail.

The appellant stands convicted by the Judgment of conviction and order of sentence dated 17-8-2022 passed by the learned Additional District & Sessions Judge (FTC) Baloda Bazar, District Baloda Bazar Bhatapara under Protection of Children from Sexual Offences Act 2012 in Special Criminal Case POCSO No. 47 of 2018 as under.

S. Conviction Sentence

1. Under Section 363/34 of RI for fie years and fne of Rs.

IPC 500/-.

2. Under Section 366/34 of RI for fie years and fne of IPC Rs.500/-

3. Under Section 376 of IPC RI for ten years sand fne of and Section 4 of POCSO Rs.500/-, in default of payment of Act, 2012 fne amount, 3 -3 montss of RI more.

All tse sentences are directed to run concurrently.

Victim/prosecutrix has appeared through Video Conferencing from concerned District Legal Services Authority and has raised objection for grant of bail to the appellant.

Learned counsel for the appellant would submit that the victim/prosecutrix has admitted the fact that she has given her statement as per advice of her family members. The victim/prosecutrix was medically examined by the Dr. Khushbhu Bajpayee (PW/16) who opined that prior to 96 hours of her examination, victim was not subjected to sexual intercourse. He would further submit that the said doctor has also deposed before the trial court that she has taken information from the victim/prosecutrix whereas she has stated that she is doing the sexual intercourse during the last one year. He would further submit that the school documents of the victim which were produced as Ex.P/16, were not proved in accordance with law as the author of the said documents has not been examined. He would further submit that the appellant is in jail for more than one year and three months, the appeal is of 2022 and hearing of appeal on merits will take some time, therefore, the appellant may be released on bail.

On the other hand, learned State counsel opposing the bail application would submit that the appellant has rightly been convicted by the trial court as there was clinching evidence against the appellant for the alleged commission of offence. He would further submit that since the appellant has given poisonous food to the victim, therefore, she became unconscious and thereafter she was abducted, therefore, offence under Section 363 and 366 of IPC has been made out and prayed for rejection of the bail application.

I have heard learned counsel for the parties and perused the record.

Considering the fact that the victim/prosecutrix has deposed before the trial court that she has given her statement as per advice of her family members, further considering the fact that date of birth of the prosecutrix has not been properly proved by the prosecution, the victim/prosecutrix was not subjected to sexual intercourse prior to 96 hours of medical examination by the Doctor (PW/16) and also the fact that hearing of appeal will take some time, I am inclined to allow the application for suspension of sentence and grant of bail.

Accordingly, I.A.No. 1 of 2022 is allowed and it is directed tsat tse execution of furtser substantiie jail sentence ssall remain suspended and tse appellant ssall be released on bail on sis executing a personal bond in sum of Rs.25,000/- wits one surety in tse like sum to tse satisfaction of tse trial Court for sis appearance before tse Registry of tsis Court on 4-1-2023. He ssall tsereafter appear before tse trial Court on a date to be giien by tse Registry of tsis Court and ssall continue to appear tsere on all sucs subsequent dates as are giien to sim by tse said Court till tse disposal of tsis appeal.

List tsis case for fnal searing in its csronological order. Cc as per rules.

Sd/-

(Narendra Kumar Vyas) Judge

Raju