Patna High Court – Orders
Md. Barik vs The State Of Bihar on 8 January, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3013 of 2024
Arising Out of PS. Case No.-129 Year-2019 Thana- KATIHAR MUFFASIL District- Katihar
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Md. Barik S/O Abdul Sattar R/O-Mahiyarpur,P.S.- manihari, Distt-katihar
... ... Appellant/s
Versus
1. The State of Bihar
2. Ganesh Murmu S/O Bhado Murmu R/O-Kamat Tola, Sirniya,P.S.-Muffasil,
Distt-Katihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sanjeev Kumar Singh, Adv
For the Respondent/s : Mr. Binay Krishna, Spl. PP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
6 08-01-2025
Heard learned counsel appearing on behalf of the
parties.
2. The present matter was taken on board for
considering prayer of bail and suspension of sentence under
Section 389 (1) of the Code of Criminal Procedure (in short
Cr.P.C.)/Section 430(1) of BNSS as raised through memo of
appeal, itself as preferred under Section 374(2) of the
Cr.P.C./ Section 415 (2) of BNSS.
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3. The appellant has been convicted by the
judgment of conviction dated 08.05.2024 and order of
sentence dated 15.05.2024 passed by learned Additional
Sessions Judge-VI cum Special Judge POCSO, Katihar in G.R.
No. 2349 of 2019 (arising out of Muffasil P.S. Case No. 129
of 2019), whereby he has been convicted under Section 3 r/w
Section 4 of the POCSO Act, Section 376 and 366 of the IPC
and Section 3(w) of SC & ST Act and he has been sentenced
to undergo rigorous imprisonment for seven years and fine of
Rs. 25,000/- for the offence punishable under Section 3 r/w
Section 4 of the POCSO Act, rigorous imprisonment for seven
years and fine of Rs. 25,000/- for the offence punishable
under Section 376 of the IPC, rigorous imprisonment for
three years and fine of Rs. 5,000/- for the offence punishable
under Section 366 of the IPC, imprisonment for six months
for the offence punishable under Section 3(w) of SC/ST Act.
In default of payment of fine further undergo additional
punishment for three months. All aforesaid sentences ordered
to run concurrently.
4. It is submitted by learned counsel for the
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appellant that testimony of victim/P.W. 5 regarding forced
marriage and rape appears false on its face, in view of her
statement as recorded under Section 164 of the Cr.P.C.,
wherein she categorically stated that when she will attain
majority (18 years of age) will solemnize marriage with
appellant/convict. It is submitted that this statement is
sufficient to suggest that victim accompanied
appellant/convict out of her own sweet will and thereafter
solemnized marriage. In this context, it is further submitted
that P.W. 3, who is a doctor and examined victim and did not
find any injury in and around private part of the body or any
other body part of the victim, so as to suggest
rape/penetrative sexual assault was committed upon her.
5. It is also submitted that age of victim could not
established in view of Section 2(1)d of the POCSO Act 2012.
It is submitted that if benefit of + 2 years be given by
considering the natural error as the age of victim was asserted
on the basis of her radiological examination, her age appears
between 17-19 years, making the conviction under POCSO
Act also appears doubtful on its face.
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6. While concluding the argument it is submitted
that with aforesaid evidence balance of appeal appears in
favour of appellant, where appellant remains in custody for
about 4 years and 2 months against the fixed term sentence
of 7 years i.e., more than half of his sentence and as this
appeal is of August 2024 itself, same is not likely to be listed
for final hearing in the near future and on this score also
appellant deserves bail. In support of his submissions learned
counsel relied upon the legal report of Hon’ble Supreme Court
as available through Atul @ Ashutosh Vs. State of
Madhya Pradesh, reported in [(2024) 3 SCC 663].
7. Learned Spl.PP appearing on behalf of
respondent-State, while opposing the prayer of bail and
suspension of sentence submitted that information to
informant regarding present pending proceeding was already
given through local SHO/Superintendant of Polic, in terms of
order dated 29.10.2024 of this Court. Despite information
informant failed to join the present pending proceedings. It is
submitted further that victim testified the allegation of
rape/penetrative sexual assault against appellant however
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learned Spl.PP could not disputed the submission as advanced
above.
8. In view of above discussed factual and legal
submissions and by taking note of the fact as
accused/appellant is in custody for about four years and two
months i.e., more than half of the sentence against fixed term
sentence of seven years and also her contradictory statement
qua her statement recorded under Section 164 of the Cr.P.C.
and as this appeal is not likely to be taken up for final hearing
in the near future, as same is of August 2024, accordingly by
taking note of legal ratio as available through, Atul @
Ashutosh Case (supra) accused/appellant, above named, is
directed to be released on bail in connection with G.R. No.
2349 of 2019 (arising out of Muffasil P.S. Case No. 129 of
2019) on furnishing bail bond of Rs.10,000/- (Rupees Ten
Thousand) with two sureties of the like amount each to the
satisfaction of learned Additional Sessions Judge-VI-cum-
Special Judge, POCSO, Katihar/concerned Court, during
pendency of appeal.
9. Sentence of imprisonment imposed on the
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appellant is suspended till disposal of the appeal and recovery
of fine be also kept in abeyance.
10. Appellant shall co-operate in disposal of this
appeal.
11. Observations, as regard to merit, if any, shall be
of no bearing while final hearing of this appeal.
12. Re-notify this case as per its own seriatim for
final hearing.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
U T