Patna High Court - Orders
Rohit Kumar @ Amar Kumar vs The State Of Bihar on 12 December, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1694 of 2024
Arising Out of PS. Case No.-529 Year-2022 Thana- BEGUSARAI MUFFASIL District-
Begusarai
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Rohit Kumar @ Amar Kumar Son of Uday Shankar Singh @ Uday Singh
Resident of Village- Ratanpur Vishanpur, Bishnupur, Chatarbhuj P.S.-
Begusarai Muffasil, District-Begusarai .. ... Appellant/s
Versus
1. The State of Bihar
2. Kundan Kumar(Father of Victim) Son of Late Ram Narayan Singh R/O
Vill.- Vishnupur Chaturbhuj, Ward no. 17, P.S.- Begusarai Muffasil, Dist.-
Begusarai.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sandip Kumar Gautam, Advocate
For the Informant : Mr. Pritish Kumar Lal, Advocate
For the Respondent/s : Mr. Bal Mukund Prasad Sinha, Addl.PP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
5 12-12-2024Heard Mr. Sandip Kumar Gautam, learned counsel for the appellant, Mr. Pritish Kumar Lal, learned counsel for the informant and Mr. Bal Mukund Prasad Sinha, learned Additional Public Prosecutor for the State.
2. The present prayer for bail and suspension of sentence preferred by the appellant/convict under Section 389(1) of the Code of Criminal Procedure (for short 'Cr.P.C.)/ Section 430 of BNSS is raised through the memo of appeal itself under Section 374(2) of the Cr.P.C./Section 415 of BNSS, which has been preferred against the judgment of conviction dated 16.02.2024 and order of sentence dated 22.02.2024 respectively passed by learned Exclusive Special Judge, (POCSO Act)-cum- Patna High Court CR. APP (SJ) No.1694 of 2024(5) dt.12-12-2024 2/6 Additional Sessions Judge-VI, Begusarai in POCSO Case No. 2253 of 2022 arising out of Muffasil P.S. Case No. 529 of 2022, whereby the appellant has been convicted under Section 366(A) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and he is further sentenced to undergo rigorous imprisonment for four years upon conviction for the offence under Section 7 / 8 of POCSO Act with a fine of Rs. 5,000/- each and in default of payment of fine, to further undergo simple imprisonment for one month.
3. It is submitted by learned counsel appearing for the appellant/convict that the testimony of prosecution witnesses does not suggest that the victim being a minor girl, was kidnapped with intention to force or seduce to illicit intercourse with another person, which is a basic legal ingredient as to constitute an offence under Section 366(A) of the Indian Penal Code and therefore, the conviction as recorded by the learned trial Court under Section 366(A) of the Indian Penal Code, appears questionable. In support of his submissions, learned counsel relied upon the legal report of Sat Parkash v. State of Haryana, (2015) 16 SCC 475 as stated in paragraph 5 and 6 :-
"5. The charge with reference to Section 366-A of the Penal Code needs a closer examination. Patna High Court CR. APP (SJ) No.1694 of 2024(5) dt.12-12-2024 3/6 Section 366-A of the Penal Code is extracted hereunder:
"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."
A perusal of the aforesaid section reveals that the inducing of the minor to constitute an offence under Section 366-A should have been with reference to an intent to force or seduce her "...
to illicit intercourse with another person ...". In fact, there is no mention of any other person in the sequence of allegations levelled against the appellant.
6. In the above view of the matter we are satisfied that the charge under Section 366-A IPC was also not sustainable against the appellant. For the reasons recorded hereinabove, we are of the view that the impugned order [Sarla v. State of Haryana, 2011 SCC OnLine P&H 124] passed by the High Court convicting the appellant under Section 366-A of the Penal Code is also liable to be set aside. The same is accordingly hereby set aside."
4. It is further submitted by the learned counsel that from the testimony of prosecution witnesses particularly Patna High Court CR. APP (SJ) No.1694 of 2024(5) dt.12-12-2024 4/6 P.W.6/victim, it appears that the occurrence of kidnapping was alleged to be made in presence of the parents of the appellant/convict which makes occurrence doubtful. It is submitted that from the testimony of P.W.6, it cannot be said that the assault was with sexual intercourse as defined within the meaning of Section 7 of the POCSO Act. It is also submitted that the Mark X-1, Mark X-2 and Mark X-3 are the letters exchanged between the victim and appellant suggesting that they were in affairs prior to this occurrence. While concluding argument, it is submitted that with aforesaid available evidence balance of appeal is in favour of the appellant, wherein he remained with the aforesaid evidence in custody for about two years and two months against fixed term sentence of four years, whereas this appeal is of April 2024, which is not likely to be taken up on Board for final hearing in near future and on this ground alone, the appellant/convict deserves bail.
5. The learned APP while opposing the prayer of bail and suspension of sentence could not disputed the fact as submitted by learned counsel appearing for the appellant but it was submitted that the victim was proved "child" within the meaning of Section 2(1)(d) during the course of trial in view of Section 94 (2) of Juvenile Justice Act, 2015.
6. In view of the aforesaid factual and legal Patna High Court CR. APP (SJ) No.1694 of 2024(5) dt.12-12-2024 5/6 submissions and by taking note of testimony of P.W.6/victim coupled with the fact that appellant/convict remained in custody for about two years and two months against fixed term sentence of four years, whereas this appeal is of April, 2024 itself, which is not likely to be taken up on Board for final hearing in near future, accordingly, the appellant/convict, above named, is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned Exclusive Special Judge, (POCSO Act)-cum-Additional Sessions Judge-VI, Begusarai/Court concerned in POCSO Case No. 2253 of 2022 arising out of Muffasil P.S. Case No. 529 of 2022, during the pendency of appeal.
7. The sentence of imprisonment imposed by the learned trial Court against the appellant/convict shall remain suspended till disposal of the appeal. Realization of fine, if any, shall also be kept in abeyance, during the pendency of appeal.
8. The appellant/convict is directed to co-operate in final hearing of appeal.
9. Observations, as regards to the merit of this case, if any, shall be of no bearing while final hearing of the appeal being prima facie observation.
10. List this matter under the heading "For Hearing" in Patna High Court CR. APP (SJ) No.1694 of 2024(5) dt.12-12-2024 6/6 its own seriatum.
(Chandra Shekhar Jha, J) saurabhkr/-
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