Jharkhand High Court
Md. Asif @ Bohi Ansari vs The State Of Jharkhand on 22 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 1610 of 2017
.....
Md. Asif @ Bohi Ansari --- --- Appellant
Versus
The State of Jharkhand. -- --- Respondent
---
CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
The Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through Video Conferencing
---
For the Appellant : Ms. Chandana Kumari, Adv.
For the State : Ms. Priya Shreshtha, A.P.P.
---
06/22.06.2021 Heard learned counsel for the appellant Ms. Chandana Kumari
and learned A.P.P. Ms. Priya Shreshtha for the State on the prayer for
suspension of sentence made through I.A. No.2270 of 2021.
The sole appellant stands convicted for the offence punishable
under Sections 363 and 376 of the I.P.C. and under Section 6 of the POCSO
Act by the impugned judgment dated 17th June 2017 passed in Special (P)
Case No.15 of 2015 by the court of learned District and Additional Sessions
Judge, 1st -cum- Special Judge, Godda and has been sentenced to undergo RI
for three years with a fine of Rs.1,000/- and a default sentence for the offence
punishable under Section 363 of the IPC, further sentenced to undergo RI for
10 years with a fine of Rs.5,000/- and a default sentence for the offence
punishable under Section 376 of the IPC, though no separate sentence has
been awarded under Section 6 of the POCSO Act, vide impugned order of
sentence dated 11th July 2017.
Learned counsel for the appellant submits that earlier the prayer
for suspension of sentence of this appellant made through I.A. No.7267/2017
was dismissed as not pressed vide order dated 12th February 2018. It is
submitted that the F.I.R. was instituted after 12 days of the alleged incidence
of missing of the daughter of the informant P.W.7. The victim in her statement
as P.W.4 has stated that she was taken to Nasik where forcible intercourse was
committed with her for 3-4 days and from there to Gaziabad again for 3-4
days and then she was brought to Naraini, from where she was recovered by
the Police. She admitted that she was pregnant. However, the victim has
throughout 10-12 days of her stay with the appellant, not raised any alarm to
show that she was being forcibly taken away by the appellant. It is submitted
that as per the medical report of the victim adduced by P.W.9 Doctor, she was
examined on 4.4.2015 i.e. after about 20 days of her missing. She was found
to be carrying 15 weeks' fetus. However, the Doctor opined that victim was
16 years old but no external injury was found. As per the prosecutrix, the fetus
was aborted. It, therefore, appears that victim was carrying pregnancy from
before the date of missing. It is, therefore, clear that the victim was pregnant
from before the date of her missing regarding which the prosecution has no
answer. Learned counsel for the appellant submits that the appellant has
remained in custody since 12th August 2015 i.e. two months less than six
years against the maximum sentence of 10 years awarded under Section 376
of the I.P.C. Therefore, the appellant may be enlarged on bail by granting
suspension of sentence.
Learned A.P.P. has opposed the prayer. She submits that the
medical report adduced by the Doctor P.W.9 and the birth certificate of the
victim obtained by the Investigating Officer P.W.6, both show that she was a
minor aged 16 years at the time of incidence. Therefore, question of consent
from a minor does not arise. Moreover, the victim had become pregnant and
the fetus had to be aborted. In these circumstances, the appellant does not
deserve to be enlarged on bail.
We have considered the submissions of learned counsel for the
parties and taken into account the material evidence relied on from the lower
court records as also the period of custody undergone by the appellant.
Having regard to the aforesaid facts and circumstances and that
the appellant has remained in custody for about 5 years and 10 months by
now, we are inclined to enlarge the appellant on bail during pendency of the
appeal by granting suspension of sentence. Appellant is directed to be released
on bail on furnishing bail bonds of Rs. 10,000/- (rupees ten thousand) with
two sureties of the like amount, each, to the satisfaction of learned District
and Additional Sessions Judge, 1st -cum- Special Judge, Godda in connection
with Special (P) Case No.15 of 2015 with the condition that the appellant as
well as his bailors shall not change their addresses and mobile numbers, if
any, without prior permission of the learned trial court. I.A. No.2270/2021
stands disposed of.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Shamim/
