Chattisgarh High Court
Devisharan Aayam vs State Of Chhattisgarh on 29 November, 2022
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 904 of 2021
Devisharan Aayam S/o. Ramdhani Gond, Aged about 20 years,
Residence of village Pandri (Dholpakhna), P.S. Raghunathnagar, District
Balrampur- Ramanujganj (CG)
---- Appellant
Versus
State of Chhattisgarh through Police Station Basantpur, District
Balrampur- Ramanujganj (CG)
---- Respondent
29/11/2022 Mr. A.K. Yadav, Advocate for the appellant.
Mr. R.M. Solapurkar, GA for the State.
Heard on application (I.A. No. 01/2021) under Section 389
CrPC for suspension of sentence and grant of bail to the appellant.
By the impugned judgment dated 26.07.2021 passed by
Additional Sessions Judge/ Special Judge (POCSO/FTSC)
Ramanujganj, District Balrampur Ramanujganj (CG) in Special
Sessions Trial (POCSO) No. 29/2016, the appellant stands
convicted and sentenced as under:-
Conviction Sentence
U/s. 366 IPC RI for 5 years and fine of Rs.
5000/- in default of payment of fine
additional RI for 3 months.
U/s. 342 IPC RI for 1 year and fine of Rs. 1000/-
in default of payment of fine
additional RI for 1 month.
U/s. 506 IPC RI for 1 year and fine of Rs. 1000/-
in default of payment of fine
additional RI for 1 month.
U/s. 376 IPC RI for 7 years and fine of Rs.
10,000/- in default of payment of
fine additional RI for 6 months.
With a direction to run all the
sentences concurrently.
Learned counsel for the appellant would submit that the
prosecutrix is above 18 years of age as observed by the trial
Court in paragraph-31 of its judgment. He would submit that the
allegation of rape is improbable and it is convincingly revealed
from the materials available that it was only consensual sexual
inter course and not a case of rape, therefore, no offence under
Section 376 IPC is not made. He would further submit that as per
the statement of the prosecutrix, neither she objected the
appellant for committing forceful intercourse nor she made any
attempt to protect herself from the appellant. He would further
submit that the incident is happened in February, 2016 and the
report was lodged on 09.07.2016, there is delay of five months in
lodging the FIR which also diluted the case of the prosecution.
Learned counsel for the appellant would further submit that the
appellant kept her in his sister-in-law's house for two days while
returning from Wadrafnagar and went from there but she has not
chosen to make any attempt to run away from there. He would
further submit that the appellant has already undergone 1 year
and 7 months of jail imprisonment during trial and even after the
conviction, therefore, suspension of sentence and grant of bail
may be allowed.
Learned State counsel opposes the prayer for suspension
of sentence and grant of bail to the appellant and would submit
that there is sufficient evidence brought on record by the
prosecution with regard to involvement of the appellant,
therefore, conviction of the appellant is legal, justified and does
not call for any interference by this Court.
I have heard learned counsel for the parties and perused
the entire record carefully.
Having considered the facts and circumstances of the case
and the fact that there was considerable delay of five months in
lodging the FIR and the fact that the prosecutrix did not state in
her statement recorded under Section 164 CrPC that she has
made any attempt to protect herself from the appellant whereas
the appellant has kept her in his sister-in-law's for two days while
returning from Wadrafnagar even she has sufficient time to run
away from there but she did not make any attempt to do so, and
considering the fact that the appellant has already undergone 1
year and 7 months of jail sentence and the appeal is of the year
2021 and hearing of the appeal will likely to take some time for its
disposal, therefore, I am inclined to allow this application.
Accordingly, the application is allowed and 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 furnishing a personal bond in sum of
Rs. 25,000/- with one surety like sum to the satisfaction of the
concerned trial Court for his appearance before the Registry of
this Court on 12.01.2023. He shall thereafter continue to appear
before the trial Court on all such subsequent dates as are given
to him by the trial Court till the disposal of this appeal.
List this case for final hearing.
Sd/-
(Narendra Kumar Vyas
santosh Judge
