Surendra Netam vs State Of Chhattisgarh
2023 Latest Caselaw 62 Chatt

                      HIGH COURT OF CHHATTISGARH, BILASPUR

                                         Order Sheet

                                      CRA No. 737 of 2022

    • Surendra Netam S/o Narayan Netam Aged About 22 Years R/o Govindpur Awaspara,
      P.S. Kanker, Dist. Kanker (C.G.)

                                                                                   ---- Appellant

                                               Versus

    • State Of Chhattisgarh Through The Police Station Borai, District Dhamtari (C.G.)

                                                                                 ---- Respondent

04.01.2023 Shri Ashutosh Shukla, counsel for the appellant.

Shri Neeraj Pradhan, Panel Lawyer for the State/respondent.

Heard on IA No.01/2022, application for suspension of sentence and grant of bail to the appellant.

By this criminal appeal, the appellant has challenged the impugned judgment of conviction and order of sentence dated 04.3.2022 passed by Special Judge POCSO (FTC), Distt. Dhamtari in Special Criminal Case No.37/2019, whereby the appellant has been convicted and sentenced in the following manner:-

              Sl.     Conviction    Jail Sentence       Fine       Default
              No.     under Section                     Sentence   stipulation

01. 6 of POCSO RI for 20 years Rs.5,000/- RI for 06 months Act

02. 363 IPC RI for 04 years Rs. 500/- RI for 06 months

03. 366 IPC RI for 04 years Rs.500/- RI for 06 months

The appellant has also been convicted under Section 376(2) of the IPC, but since the aforesaid offence and Section 6 of the POCSO Act are alike offence and also prescribed as same offence, he has not been sentenced under Section 376(2) of the IPC separately.

Learned counsel for the appellant would submit that the appellant has been convicted erroneously by the learned Special Judge as, according to the case of the prosecution itself, age of the victim/prosecutrix was marginal, therefore, her date of birth is required to be proved beyond reasonable doubt but the same has not been proved by adducing any legal documents and only on the basis of admission and discharge register, her date of birth has been proved. He further submits that the prosecutrix herself has submitted in her statement that she was having love affair with the appellant and she wanted to marry him, therefore, she herself had gone to the house of the appellant. It is further submitted that whether physical relation was made or not has been contradicted by the prosecutrix in her deposition. He next submits that the appellant is a young boy of 22 years and he is in jail since 26.7.2019, i.e. from the date of his arrest. It is further submitted that the appellant and the victim belong to tribal community and are resident of tribal area. Hence, considering the aforesaid facts, jail sentences awarded to the appellant may be suspended till disposal of this appeal.

On the other hand, learned counsel for the State while opposing the bail application submits that the appellant has been convicted for the offence of kidnapping and rape of minor girl, hence, his application is liable to be dismissed.

The victim/prosecutrix along with her parents appeared before this Court through Video Conferencing from District Legal Services Authority, Dhamtari. They submitted no objection in respect of suspension of jail sentence to the appellant.

Considered the submissions made by learned counsel for both the parties and perused the records.

Considering the marginal age of the victim on the date of incident, which is said to be 17 years and 4 months, as has been shown by the prosecution, and the age of the appellant, which is said to be 22 years, further both belong to tribal community, resident of tribal area Kanker (Bastar) and also considering other circumstances of the case, we are inclined to suspend remaining jail sentences of the appellant.

Accordingly, IA No.01/2022 is allowed.

It is directed that execution of substantive jail sentences imposed on the appellant shall remain suspended during the pendency of this appeal and he shall be released on bail on his furnishing a personal bond of Rs.25,000/- with one surety in the like sum to the satisfaction of the trial Court. The appellant shall appear before the Registry of this Court on 14.02.2023 and thereafter he shall appear before the trial Court on a date to be given by the Registry on this behalf and shall continue to appear there on all such subsequent dates as are given to him by the said Court, till the disposal of the appeal.

List this case for final hearing in due course.

                     Sd/-                                       Sd/-

             (Goutam Bhaduri)                          (NK Chandravanshi)

                    Judge                                      Judge




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