Jharkhand High Court
Abdul Kayum @ Abdul Kayum Ansari vs The State Of Jharkhand on 23 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 512 of 2023
With
I.A. No. 5447 of 2023
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Abdul Kayum @ Abdul Kayum Ansari ....... Appellant
Versus
The State of Jharkhand ....... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Shadab Eqbal, Advocate
For the Respondent : Mr. V.S. Sahay, A.P.P.
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rd
06/Dated: 23 August, 2023
I.A. No. 5447 of 2023:
1. Learned counsel for the appellant, at the outset, has sought for leave of
this Court to make necessary correction in the instant interlocutory
application as under paragraph-1, wherein, reference of P.S. case has
been made, it has been mentioned therein as "Latehar P.S. Case No. 63
of 2018 corresponding to G.R. No. 313 of 2018" but actually it is
"Latehar P.S. Case No. 146 of 2021 corresponding to Spl. POCSO Case
No. 43 of 2021".
2. It has been contended that in the memo of appeal, the same has been
referred as "Spl. POCSO Case No. 43 of 2021" as would appear from
paragraph-1 of the memo of appeal so as referred in the impugned
judgment.
3. Supplementary affidavit has also been filed to that effect.
4. Leave has also been sought for making necessary correction in
paragraph-1 of the instant interlocutory application wherein the date of
judgment and sentence has been mentioned as "judgment dated 9th day of
June, 2020 and order of sentence dated 11/06/2020" instead of
"judgment dated 22.02.2023 and order of sentence dated 28.02.2023".
Further leave has also been sought for to make necessary correction in
the name of Presiding Officer which has been mentioned as "Sri. Anil
Kumar Pandey Learned Additional Sessions Judge-II, Latehar" instead
of "Amit Kumar, Spl. Judge (POCSO Act), Latehar".
5. We have gone through the impugned judgment as also the memorandum
of appeal.
6. Let the necessary correction be made as indicated hereinabove in course
of the day.
7. The instant interlocutory application has been filed under Section 389(1)
of the Cr.P.C. for keeping the sentence in abeyance in connection with
the judgment of conviction dated 22.02.2023 and order of sentenced
dated 28.02.2023 passed by the learned Spl. Judge (POCSO Act),
Latehar in in connection with Spl. POCSO Case No. 43 of 2021 arising
out of Latehar P.S. Case No. 146 of 2021, whereby and whereunder, the
appellant has been directed to undergo rigorous imprisonment for 10
years for commission of offence under Section 366 of IPC.
8. It has been contended on behalf of the appellant that although the FIR
was instituted under Section 11 of POCSO Act as also under Section 366
of IPC but the learned trial court has acquitted the appellant under
Section 11 of POCSO Act, however, convicted the appellant under
Section 366 of IPC.
9. It has been contended that there is no ingredient of Section 366 of IPC as
would appear from the testimony of the victim, more particularly, the
deposition made at paragraphs-5 and 7 thereof. Therefore, it is a fit case
where the sentence may be suspended.
10. Mr. V.S. Sahay, learned Additional Public Prosecutor appearing for the
respondent-State has filed affidavit in objection to this interlocutory
application stating inter alia therein that it is not a fit case where the
sentence be suspended on the ground that the victim was having the age
of 16-17 years as has been assessed by the Medical Board as well as the
birth certificate.
Further objection has been made that in a case of minor, wish of the
child is of no bearing.
Herein, the learned counsel by putting reliance upon the testimony of
the victim as under paragraps-5 and 7 thereof, has contended that the
victim by her own has accompanied the appellant and hence, it is
incorrect on the part of the appellant to take the ground that the case
under Section 366 of IPC is not being made out.
Learned APP has submitted that since it is a case where the appellant
was in teaching profession and by enticing the victim, who happens to be
minor, had carried the victim to Prayagraj (Allahabad) in place of
Daltonganj. The said conduct of the appellant clearly established the
commission of crime under Section 366 of IPC, hence, the instant
application is fit to be rejected.
11. We have heard the learned counsel for the parties, perused the finding
recorded by the learned trial court as also the document available on
record including the lower court record which has been called for by this
Court vide order dated 18.05.2023 and testimony of the witnesses.
12. The admitted position herein is that a criminal case was put at motion
under Section 11 of POCSO Act and under Section 366 of IPC as would
appear from the impugned judgment. The appellant has been acquitted so
far as the offence under Section 11 of POCSO Act is concerned.
13. It needs to refer herein that the State has not come out with the plea that
they have challenged the impugned judgment acquitted the appellant
under Section 11 of POCSO Act. The only question remains herein is
with respect to the conviction under Section 366 of IPC.
14. We have considered the ingredient of Section 366 of IPC which
stipulates about kidnapping, abducting or inducing woman to compel her
marriage, etc. For ready reference, Section 366 is being referred as
under:
"366. Kidnapping, abducting or inducing woman to compel her
marriage, etc.--Whoever kidnaps or abducts any woman with intent that
she may be compelled, or knowing it to be likely that she will be
compelled, to marry any person against her will, or in order that she may
be forced or seduced to illicit intercourse, or knowing it to be likely that
she will be forced or seduced to illicit intercourse, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; and whoever, by means of criminal
intimidation as defined in this Code or of abuse of authority or any other
method of compulsion, induces any woman to go from any place with
intent that she may be, or knowing that it is likely that she will be, forced
or seduced to illicit intercourse with another person shall also be
punishable as aforesaid.
366-A. Procuration of minor girl. - Whoever, by any means whatsoever,
induces any minor girl under the age of eighteen years to go from any
place or to do any act with intent that such girl may be, or knowing that it
is likely that she will be, forced or seduced to illicit intercourse with
another person shall be punishable with imprisonment which may extend
to ten years, and shall also be liable to fine.
366-B. Importation of girl from foreign country. - Whoever imports into
India from any country outside India or from the State of Jammu and
Kashmir any girl under the age of twenty-one years with intent that she
may be, or knowing it to be likely that she will be, forced or seduced to
illicit intercourse with another person, shall be punishable with
imprisonment which may extend to ten years, and shall also be liable to
fine."
15. We, in order to examine the ingredient of Section 366, has considered
the testimony of P.W.-1, but, we are of the prima facie view that the
ingredient of Section 366 is not made out.
16. Considering the aforesaid fact, this Court is of the view that the sentence
in connection with Spl. POCSO Case No. 43 of 2021 arising out of
Latehar P.S. Case No. 146 of 2021, deserves to be suspended.
17. Regard being had to the facts and circumstances, the instant interlocutory
application stands allowed.
18. Accordingly, the appellant, named above, is directed to be released on
bail during pendency of appeal on furnishing bail bond of Rs. 25,000/-
(Twenty-Five Thousand only) each with two sureties of the like amount,
to the satisfaction of the learned Special Judge (POCSO Act), Latehar in
connection with Spl. POCSO Case No. 43 of 2021 arising out of Latehar
P.S. Case No. 146 of 2021.
19. It is made clear that any observation made hereinabove will not prejudice
the case of the appellant on merit, since, the criminal appeal is lying
pending before this Court.
20. In view thereof, I.A. No. 5447 of 2023 stands disposed of with the
aforesaid observation and direction.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
