Ashique Ansari vs The State Of Jharkhand
2021 Latest Caselaw 2572 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 Cr. Appeal (DB) No. 569 of 2020

             Ashique Ansari                                  ---           ---    Appellant
                                               Versus
             The State of Jharkhand                          ---           ---    Respondent
                                                ---

              CORAM:         Hon'ble Mr. Justice Aparesh Kumar Singh
                          Hon'ble Mrs. Justice Anubha Rawat Choudhary
                                   Through:   Video Conferencing
                                                ---
              For the Appellant:        Mr. Kripa Shankar Nanda, Advocate
              For the Resp.-State:      Mr. Vishwanath Roy, A.P.P
              For the Informant:        Ms. Lokeshwari Banerjee, Advocate
                                          ---
04 / 27.07.2021      Heard learned counsel for the Appellant Mr. Kripa Shankar Nanda and

learned A.P.P Mr. Vishwanath Roy as also learned counsel for the Informant Ms. Lokeshwari Banerjee on the prayer for suspension of sentence of this Appellant made through I.A. No. 3108/2021.

2. The sole Appellant stands convicted for the offence punishable under section 4 of POCSO Act by the impugned judgment dated 23.08.2019 passed in Sessions Trial No. 14/2017 by the Court of learned Additional Sessions Judge-I, Lohardaga and has been sentenced to undergo R.I for twelve years with a fine of Rs. 20,000/- and default sentence, by the impugned order of sentence dated 27.08.2019.

3. Learned counsel for the Appellant submits that as per the case of the prosecutrix (PW-1), she was subjected to sexual intercourse at the age of 16 years from December 2015 and on becoming pregnant, she approached Anjuman for her marriage, whereafter she got married with the appellant on 06.10.2016 with her consent in the presence of parents of both of them. However, she was ousted from the matrimonial house on 07.10.2016 and thereafter, FIR was instituted on 12.11.2016. It is submitted that the Medical Officer (PW-3) has adduced the report of the Medical Board as Ext. 04, as per which, her age was found between 17-18 years as on 14.11.2016 on radiological examination,; no injury was found on her private part; no evidence of recent sexual activity was either found; she was found carrying foetus of 32-34 weeks. It is submitted that the offence of penetrative sexual assault cannot be said to be made out against the appellant as the victim aged 17-18 years was in consensual sexual relationship with the appellant and after getting pregnant, got married with her consent and consent of her parents as well as the appellant. The entire prosecution case makes out a false case of rape or penetrative sexual assault .2 against the appellant, though the victim and the appellant were married. It is submitted that the appellant has been in custody since 14.11.2016 i.e. about three and half months less than five years. Therefore, appellant may be enlarged on bail by suspending his sentence.

4. Learned counsel for the Informant and learned AP.P both have opposed the prayer. It is submitted that the victim was a minor when she was subjected to forcible sexual intercourse and she became pregnant and thereafter, her marriage was solemnized with the appellant at the instance of Anjuman. Immediately thereafter, she was thrown out of the matrimonial house. Therefore, marriage was a sham. Victim has given birth to a male child pursuant to forcible sexual intercourse. Therefore, the appellant should not be enlarged on bail.

5. We have considered the submissions of learned counsel for the parties and taken note of the materials relied upon by them from the lower court records including the period of custody undergone by the appellant since 14.11.2016. It appears that the victim was found to be between 17-18 years of age by the Medical Officer as on 14.11.2016 and there was no evidence of injury on her private part or evidence of recent sexual activity. Materials on record show that the victim got married with her consent after getting pregnant in the relationship with the appellant. Case has been instituted after she has been thrown out of the matrimonial house alleging penetrative sexual assault upon her. Appellant has been in custody for about three and half months less than five years. Taking into account all these facts and circumstances, we are inclined to enlarge the appellant on bail by suspending his sentence during pendency of this appeal. Accordingly, Appellant Ashique Ansari shall be released on bail, during pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees ten thousand) with two sureties of the like amount each, to the satisfaction of learned Additional Sessions Judge-I, Lohardaga in Sessions Trial No. 14/2017 with the condition that he and his bailors shall not change their address or mobile nos. without permission of the learned Trial Court. I.A. No. 3108/2021stands disposed of.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Ranjeet/