Calcutta High Court (Appellete Side)
Tanmoy Santra vs Unknown on 23 July, 2021
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
23.07.2021 Sl. No. 04 Srimanta Ct. No. - 42 D/L IA No.:CRAN/1/2021 in CRA/180/2021 (Via Video Conference) In Re : An application for suspension of conviction and sentence under Section 389 of the Code of Criminal Procedure, 1973 against the Judgement and Order dated 24.02.2021 passed by the Court of the Learned Additional Sessions Judge-cum-Special Judge under POCSO Act, Bishnupur at Bankura in connection with POCSO Case No. 1/2019 (POCSO Trial No. 3/2019) in connection with Indas Police Station Case No. 1/2019 dated 02.01.2019 under Sections 363/365/34 of the Indian Penal Code.
In the matter of : Tanmoy Santra.
... Appellant.
Mr. Sumanta Chakraborty, Adv.
...for the appellant.
Ms. Faria Hossain, Adv., Mr. Aniket Mitra, Adv.
...for the State.
A girl of 16 years was eloped by the accused. She was taken to the paternal house of the accused. A marriage was then solemnized between the accused and the said minor girl at Arambag Temple and then they started living as husband and wife.
After about two months of missing, the father of the victim girl lodged a petition of complaint under Section 156(3) of the Code of Criminal Procedure which was treated as F.I.R. on being directed by the jurisdictional Magistrate. During investigation the girl was recovered from the house of the accused. Her medical examination was done. It is found from the medical report that she is habituated in sexual intercourse.
2The victim's statement was recorded under Section 164 of the Code of Criminal Procedure. In her statement, the victim stated that she used to love the accused and left her paternal home voluntarily with the accused and married him.
Police submitted charge-sheet against the accused under Sections 363/365 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act. The Learned Trial Judge convicted the accused for committing offence under Section 4 of the POCSO Act and sentenced him to suffer imprisonment for a period of seven years with fine and default clause.
During trial the accused was on bail. The instant petition is for suspension of sentence and bail of the accused during pendency of the appeal.
I have carefully gone through the impugned Judgement. Even assuming that the victim wilfully left her paternal home with the accused, married him and started to live with him as his wife, penetrative sexual assault upon a child below 18 years of age even with her consent is an offence under Section 4 of the POCSO Act. Learned Public Prosecutor-in- Charge has raised serious objection against the prayer for bail only on the above ground.
This Court is of the considered view that minor's consent is no consent. The minor was not only subjected to sexual assault but penetrative sexual assault was committed upon her repeatedly by the accused. Considering all such materials-on-record I am not inclined to suspend the sentence and release the accused on bail at this stage.
The Section Officer, Criminal Section is, however, directed to call for the Lower Court Record immediately and ensure that the Lower Court Record be received within three weeks from the date. The paper book be prepared within three weeks thereafter.
3The Learned Advocate for the appellant/petitioner is at liberty to mention the matter on receipt of the paper book to enlist the instant appeal for final hearing.
(Bibek Chaudhuri, J.)