Chattisgarh High Court
Brij Bai Dubey vs State Of Chhattisgarh on 3 January, 2025
1
HIGH COURT OF CHHATTISGARH AT BILASPUR
I.A. No. 01 of 2024
In Re:
CRA No. 1005 of 2024
1 - Brij Bai Dubey W/o Kunju Dubey Aged About 55 Years R/o Santan Nagar,
Lalkhadan, Thana Torwa, District Bilaspur (C.G.)
... Appellant
versus
1 - State of Chhattisgarh Through The Station House Officer, P.S. Torwa, District
Bilaspur (C.G.)
... Respondent
Order on Board
03/01/2025 Heard Mr. Rahil Arun Kochar, learned counsel for the
appellant. Also heard Mr. Malay Kumar Jain, Panel Lawyer, for
the respondent/State.
In compliance of the order dated 02.01.2025, the co-
accused in the case Sonu Dubey who is the son of the present
appellant has been connected through virtual mode from Central
Jail, Bilaspur and he has been identified by Mr. Khomesh
Mandavi (Jail Superintendent) Central Jail, Bilaspur. When a
query has been made as to why he has not preferred any appeal
against the impugned judgment of conviction and sentence
passed by the trial Court for the offence in question then he
states that he has given instruction to his family members for
filing of his appeal from outside who are in the process of filing
the appeal by private counsel but the same could not be filed till
date. Mr. Khomesh Mandavi (Jail Superintendent) Central Jail,
Bilaspur states that the accused has been apprised five times that
he can file his appeal through legal aid but he has not taken the
assistance of legal aid for filing his appeal and today also he also
said that time may be granted to him in order to enable his family
members to file the appeal on his behalf. In view of the above, we
proceed to hear application for suspension of sentence and grant
of bail filed by the present appellant Brij Bai Dubey in the present
appeal.
Heard on I.A. No. 01/2024, which is an application under
Section 389 of Cr.P.C.
By the impugned judgment of conviction and sentence
dated 09.05.2024 passed in Special Criminal Case (POCSO Act)
No. 145/2022, by the Court of learned ASJ/ Second FTC
(POCSO) Bilaspur, District- Bilaspur (C.G.) has been convicted
the appellant as under:-
Conviction Sentence
Section 363/34 of I.P.C. R.I. for 03 years and fine of Rs.
1000/- in default of fine further
R.I. for 02 months.
Section 366 A /34 of I.P.C. R.I. for 05 years and fine of Rs.
1000/- in default of fine Further
R.I. for 02 months.
Section 4/17 of POCSO Act R.I. for 20 years and fine of Rs.
1000/- in default of fine further
R.I. for 02 months.
Learned counsel for the appellant would submit that the
appellant is no where concerned of the alleged offence of
kidnapping and rape by the co-accused Sonu Dubey, however,
she has also been convicted for the alleged offence for abetment
to commit penetrative sexual assault whereas there is no
sufficient evidence against her in the case that she in any manner
abetted the co-accused to commit the offence. He would further
submits that there is no cogent and clinching evidence that the
victim was minor on the date of incident. She herself eloped with
the co-accused and visited place to place without raising
objection and without making any complaint to anyone. He would
further submits that in cross-examination the victim has stated
that she herself left her house and since last one year she had
gone to Rajasthan without informing her family members. The
conduct of the victim itself is doubtful as to she travelled with the
co-accused upto Manikpur, Uttar Pradesh but has not made any
complaint to anyone during her travel. No injuries have been
found on her body the present appellant is a lady aged about 55
years and is in jail since 21.08.2022 the final adjudication of the
appeal will take its own time, therefore, she may be enlarged on
bail.
On the other hand, learned counsel for the state opposes
and have submitted that from the evidence available on record
the prosecutrix is minor and she was kidnapped by the accused
Sonu Dubey and the present appellant and there is positive
allegation in the evidence of the victim is there in the case that
she kidnapped the victim and confined her at Uttar Pradesh
where the co-accused committed rape upon her. He would also
submits that from the evidence of school record the prosecutrix is
proved to be minor and she was subjected to kidnapping and
rape by the persons, therefore, appellant is not entitled for bail.
We have heard learned counsel for the parties and
perused the document annexed with the record.
Having considered the rival submissions made by learned
counsel for the parties, considered the nature of allegation and
the material collected during investigation further considering the
evidence of victim PW-14, the medical evidence available in the
case, the role of the present appellant alleged in the commission
of the offence also the fact that the present appellant is a lady
and is in jail since 21.08.2022, the final adjudication of the case
will take its own time, therefore, we are inclined to release the
appellant Brij Bai Dubey on bail.
Accordingly, the substantive jail sentence awarded to the
appellant Brij Bai Dubey by the learned trial Court is hereby
suspended. She shall be released on bail on her executing a
personal bond for a sum of Rs.25,000/- with one surety of the like
sum to the satisfaction of the concerned trial Court for her
appearance before the Registry of this Court on 25.02.2025. She
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 her by
the said Court, interval being not less than 6 months, till final
disposal of this appeal.
Consequently, I.A. No. 01 of 2024 is allowed.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Alok
