Nirmal Gayan vs State of Chhattisgarh

K.H.N. Kuranga, C.J.—Heard both the counsel on the question of admission. The appeal is admitted for hearing.

Also heard both the counsel on the application M. Cr. P. No. 1818/2003 for suspension of sentences imposed on appellant--Nirmal Gayan and releasing him on bail.

The appellant, among other offences has been convicted for commission of offence u/s 376 of I.P.C. and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- in default of payment of fine to further undergo R.I. for six months. He has challenged the same in this appeal.

Name of the prosecutrix is Anju Dutt who was examined as PW 2 before the trial Court. Learned counsel for the appellant submitted that the prosecution has failed to prove that the prosecutrix was less than 16 years of age on the date of incident and no ossification test was conducted. According to the School certificate her date of birth is 18-05-88, thus on the date of incident she was 14 years. Counsel submitted that the prosecutrix has admitted in her evidence that when she joined the school her age was about 6-7 years. He also submitted that PW-1 the Doctor who examined the prosecutrix has stated in her evidence that secondary sexual characters develop between 15-18 years and according to the Doctor they had fully developed in the case of PW-2 the Prosecutrix. Therefore, counsel submitted that the prosecutrix was nearly 18 years of age on the date of incident. Counsel also submitted that the prosecutrix has admitted in her evidence that she and the appellant where staying together as husband and wife. She was missing from the house of her parents on 28-3-2003 and she was recovered when she was staying with the applicant on 08-05-2003. This itself shows that she was a consenting party. Counsel submitted that the appellant was arrested on 09-05-2002 and he is in jail since then. Having regard to the facts and circumstances of the case, I am of the opinion that it is a fit case to suspend the sentence imposed on the appellant and release him on bail. Accordingly, the application M. Cr. P. No. 1818/2003 is allowed. Execution of the sentences imposed on appellant--Nirmal Gayan are suspended and he is directed to be released on bail on his executing a bond in the sum of Rs. 5000/- with two sureties for the like sum to the satisfaction of the trial Court for his appearance before the trial Court on 16-09-2003. He shall thereafter continue to appear before the trial Court on all other subsequent dates as are given to him by the said Court, till the disposal of this appeal.