NPHAR SAHOO Vs. STATE OF CG

JUDGEMENT

(1.) HEARD on admission. Admit. Also heard on M.Cr.P.No. 587/2006 for suspension of sentence and grant ofbail. The appellant was convicted vide judgement dated 27-2-2006 delivered in Sessions Trial No. 165/2004 by the Court of Ilnd Additional Sessions Judge, Durg under Sections -366 & 376 of IPC and was sentenced to undergo rigorous imprisonment for 7 years and to a fine of Rs.5,000/- and in default of payment of fine to undergo additional R.I. for six months under Section-366 of IPC and sentenced to undergo rigorous imprisonment for 7 years and to a fine of Rs.5,000/ - and in default of payment of fine to undergo additional R.I. for six months under Section-376 of IPC. Both the sentences were ordered to run concurrently. Briefly stated the facts as alleged by the prosecution are that the appellant was deeply in love with the prosecutrix. After the prosecutrix get married to one Krishna, the appellant went to her matrimonial home and expressed his deep love for the prosecutrix and wish to marry her. Upon this assertion made by the appellant, Krishna left the prosecutrix who returned to her maternal home. It is alleged that two years prior to 29-3-2004 i.e. the date of lodging the F.I.R. the appellant Nohar Sahu developed physical relationship with the prosecutrix, who is below the age of 16 years on the false pretext of marriage. Shri Uttam Pandey, learned counsel appearing for the appellant argued that the evidence led by the prosecution does not establish the guilt of the appellant under Section-376 of IPC. He further contended that there was no satisfactory explanation for the very long delay in lodging the F.I.R. It was also contended that the prosecution has failed to furnish any primary evidence relating to proof of age of prosecutrix who was not even subjected to test of ossification. The testimony of the prosecutrix in para-6 was also referred to where she had stated that on the date of recording of evidence i.e. 29-1-2005, she was aged 18 years which was completely in variance with the birth certificate Article-D. Lastly it was argued that the manner in which the prosecutrix went to live with the appellant does not rule out that she left with the appellant on her own will and consented to the alleged sexual intercourse with her.

(2.) ON the other hand, Ms. Samta Jain, Panel Lawyer for the State has opposed the prayer for grant of bail. Having considered the rival contentions, I have perused the record. In the facts and circumstances mentioned above, the appellant is in my considered opinion, is entitled to be released on bail. Accordingly, the application M.(Cr.)P.No. 587/2006 is allowed. It is ordered that if the appellant furnishes a personal bond of Rs. 10,000/- along with a solvent surety in the like amount to the satisfaction of the trial Court for his regular appearance before the Registry of this Court on 12-6-2006 and on all such further dates as may be given to him, the execution of the substantive sentence of imprisonment - awarded to the appellant shall remain suspended and he shall be released on bail, till the final disposal of this appeal. List the matter for final hearing. Bail Granted.