The High Court of Jharkhand granted bail to the appellant, accused under Section 6 of the POCSO Act and Sections 366, 376(2)(n) of the IPC after no evidence of sexual assault was found in the victim's statement recorded under Section 164 CrPC and testimony of the did not corroborate the commission of sexual assault.
Brief Facts:
The appellant, accused of abduction and sexual assault under Sections 366, 376(2)(n) of the Indian Penal Code, and Section 6 of the POCSO Act, had filed an interlocutory application under Section 389(1) of the Code of Criminal Procedure. The appellant sought the suspension of the sentence during the appeal, challenging the conviction passed by the Special Judge-POCSO Act.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the appellant contended that there was no reference to the commission of sexual assault as per the statement, as recorded by the victim under Section 164 Cr.P.C. and the prosecution in the present case has failed to prove the charge, beyond all reasonable doubt. It was further argued that the girl even before the I.O. had not uttered a word about the commission of sexual assault by the appellant and the present case was one where the version of the girl appears to be improved as per the testimony recorded in the course of the trial.
Contentions of the Respondent:
The learned counsel appearing on behalf of the state contended that the victim had supported the prosecution version of the commission of establishing physical relations two to three times and her testimony has also been corroborated by other witnesses and hence, if the learned trial Court based upon the testimony of prosecution witnesses has found the appellant guilty, then the impugned order cannot be said to suffer from error.
Observations of the court:
The court after going through the record stated that the statement of the girl, immediately after recovery, was recorded before the Magistrate under Section 164 of the CrPC where no reference to the commission of sexual assault was found against the victim, however in the course of the trial, the victim deposed that she had been subjected to sexual assault two to three times.
Further, the court referred to the testimony of the I.O and stated that the I.O had denied that the mother of the victim had said anything about the commission of sexual assault against her daughter and further referred to the testimony of the doctor and stated that he had not corroborated the commission of sexual assault.
The decision of the Court:
The court allowed the petition and granted bail to the appellant.
Case Title: Anil Saw vs State of Jharkhand
Coram: Hon’ble Mr. Justice Sujit Narayan Prasad and Hon’ble Mr. Justice Navneet Kaur
Case No.: Cr. Appeal (DB) No. 336 of 2023
Advocate for the Petitioner: Mr. Shadab Eqbal, Mr. Haroon Rasheed and Mr. Anshuman Om
Advocate for the Respondent: Mr. Pankaj Kumar Mishra
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