Patna High Court – Orders
Nayeem Alam vs The State Of Bihar on 27 June, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3989 of 2023
Arising Out of PS. Case No.-357 Year-2015 Thana- MAJHAULIA District- West Champaran
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Nayeem Alam S/o Bagar Mian @ Bagad Mian R/o-Ahwarsheikh Churiharwa
Tola, P.S.-Majhaulia, Distt-Bettiah (West Champaran)
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Adv
For the Respondent/s : Mr. Anand Mohan Prasad Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
7 27-06-2025
I.A. No. 02 of 2025
Heard learned counsel appearing on behalf of the
parties.
2. At the outset, it is pointed out by Mr. Krishna
Prasad Singh learned senior counsel for the appellant/convict
that earlier prayer of bail and suspension of sentence was not
pressed and, therefore, same was dismissed vide order dated
26.10.2024 through I.A. No. 01 of 2024. It is submitted that
since then appellant/convict remains in custody for about one
year and eight months. It is also pointed out that still merit of
this case is available for consideration, as earlier petition was
not considered on merit.
3. The present matter is taken on board for
Patna High Court CR. APP (SJ) No.3989 of 2023(7) dt.27-06-2025
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considering prayer of bail and suspension of sentence under
Section 389 (1) of the Code of Criminal Procedure (in short
Cr.P.C.) as raised through memo of appeal, itself as preferred
under Section 374(2) of the Cr.P.C.
4. The appellant has been convicted by the
judgment of conviction dated 07.07.2023 and order of
sentence dated 14.07.2023 passed by learned A.D.J. 4 th cum-
Special Judge POCSO, Bettiah (West Champaran) in S.G.R.
No. 64 of 2015 (arising out of Majhaulia P.S. Case No. 357 of
2015), whereby he has been convicted under Section
376/511 of the Indian Penal Code (hereinafter referred to as
‘IPC‘) and Sections 4/18, 6/18 and 8 of the POCSO Act,
where he has been sentenced to undergo rigorous
imprisonment for seven years and fine of Rs. 50,000/- and in
default of payment of fine, further undergo rigorous
imprisonment for six months for the offence punishable under
Sections 376/511 of the IPC, Sections 4/18 and 6/18 of the
POCSO Act and rigorous imprisonment for five years, fine of
Rs. 25,000/- and in default of payment of fine, further
undergo rigorous imprisonment for three months for the
Patna High Court CR. APP (SJ) No.3989 of 2023(7) dt.27-06-2025
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offence punishable under Section 8 of the POCSO Act. All
aforesaid sentences ordered to run concurrently.
5. Learned senior counsel for the appellant/convict
submitted that if deposition of investigating officer in
present case be taken into consideration, who examined as
P.W. 5, it can be gathered safely that appellant/convict was
apprehended by P.W. 3, who is the father of victim/P.W. 2
while appellant/convict was indulged in penetrating sexual
assault upon victim/P.W. 2. It is submitted that age of victim
at the time of occurrence was four years and age of
appellant/convict at the time of occurrence was twenty five
years. It is submitted that medical report of the victim as
deposed by doctor/P.W. 1 who examined victim medically if
be taken into consideration then the entire occurrence
becomes doubtful in view of testimony of P.W. 5/I.O. as upon
examination hymen found intact and also no injury was found
in and around private part of the body of victim. It is
submitted that these two contradictory testimony makes
entire occurrence doubtful.
6. It is submitted that act of appellant/convict as
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deposed by P.W. 2/victim, P.W. 3/father of victim who is eye-
witness of the occurrence nowhere constitute that same falls
under the category of attempt. It is submitted that out of
some dispute arising out of digging of soil the present false
implication was made.
7. Mr. Singh, further submitted that in view of
aforesaid major contradictions the conviction as recorded by
learned Trial Court appears bad in the eyes of law. It is
pointed out that with aforesaid evidence appellant remains in
custody for total of two years and four months against fixed
term sentence of seven years, where this appeal is of year
2023, itself and same is not likely to be listed for final hearing
in the near future and on this score alone appellant deserves
bail. In support of his submissions learned senior counsel
relied upon the legal report of Hon’ble Supreme Court as
available through matter of Atul @ Ashutosh Vs. State of
Madhya Pradesh, reported in [(2024) 3 SCC 663].
8. Learned APP appearing on behalf of respondent-
State, while opposing the prayer of bail and suspension of
sentence submitted that victim and eye-witness specifically
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deposed against appellant/convict qua attempt of
rape/penetrative sexual assault but he could not dispute the
discrepancies as pointed out of testimony of P.W. 3 and P.W.
5 as discussed aforesaid.
9. In view of above discussed factual and legal
submissions and by taking note of discrepancies as surfaced
prima-facie out of testimony of P.W. 3 and P.W. 5 and also by
taking note of medical evidence as available on record as
deposed by doctor/P.W. 1, coupled with the fact as appellant
remains in custody for total of two years and four months
against the fixed term sentence of seven years and as this
appeal is not likely to be taken up for final hearing in the near
future, as same is of year 2023, itself, accordingly by taking
guiding note of Atul @ Ashutosh Case (supra)
accused/appellant, above named, is directed to be released on
bail in connection with S.G.R. Case No. 64 of 2015 (arising
out of Majhaulia P.S. Case No. 357 of 2015) on furnishing
bail bond of Rs.10,000/- (Rupees Ten Thousand) with two
sureties of the like amount each to the satisfaction of learned
A.D.J. 4th cum-Special Judge POCSO Bettiah (West
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Champaran)/concerned Court, during pendency of present
appeal.
10. Sentence of imprisonment as imposed by
learned trial court against appellant shall remain suspended
till disposal of the appeal and recovery of fine be also kept in
abeyance.
11. Appellant shall co-operate in disposal of this
appeal.
12. Accordingly I.A. No. 02 of 2025 stands disposed
of.
13. Observation as made above is of prima-facie
nature and shall be of no bearing on merit at the time of final
hearing.
CRIMINAL APPEAL (SJ) No.3989 of 2023
14. Re-notify this case as per its own seriatim for
final hearing.
(Chandra Shekhar Jha, J.)
S.Tripathi/-
U T