Arjun Karmkar @ Arjun Kumar vs The State Of Jharkhand
2021 Latest Caselaw 2906 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr. Appeal (DB) No. 30 of 2020
                Arjun Karmkar @ Arjun Kumar                     ....        Appellant
                                                Versus
                The State of Jharkhand                          ...         Respondent
                                                --

                CORAM:         Hon'ble Mr. Justice Aparesh Kumar Singh
                              Hon'ble Mrs. Justice Anubha Rawat Choudhary

                            Through Video Conferencing

                For the Appellant       : Mr. Jitendra Shankar Singh, Advocate
                For the State           : Mrs. Niki Sinha, A.P.P
                                               ---
06/16.08.2021               Heard learned counsel for the appellant, Mr. Jitendra Shankar

Singh and Mrs. Niki Sinha, learned Additional Public Prosecutor for the State on the prayer for suspension of sentence made by this appellant through I.A. No. 3294 of 2021.

Sole appellant stands convicted for the offence punishable under Sections 363/34, 366A/34, 354B, 376D of I.P.C and under Sections 6, 8,10 & 12 of POCSO Act by the impugned judgment dated 20.11.2019 passed in Children Court Case No. 02/2019 by the Court of learned Additional Sessions Judge-1st- cum-Special Judge-cum-FTC, Bokaro and has been sentenced to undergo Rigorous Imprisonment for 20 years with a fine of Rs. 20,000/- and a default sentence under Section 376D of Indian Penal Code; Rigorous Imprisonment for 5 years with a fine of Rs. 10,000/- and a default sentence under Section 354B and under Section 8 of POCSO Act; Rigorous Imprisonment for 2 years with a fine of Rs. 10,000/- and a default sentence under Section 12 of the POCSO Act; Rigorous Imprisonment for 7 years with a fine of Rs. 10,000/- and a default sentence under Section 366A/34 of Indian Penal Code and also sentenced to undergo Rigorous Imprisonment for 5 years with a fine of Rs. 10,000/- and a default sentence under Section 363/34 of Indian Penal Code by the impugned order of sentence dated 26.11.2019.

Learned counsel for the appellant submits that criminal process was set in motion on the basis of written report of the informant-father (P.W.4) about missing of his daughter on 4th September, 2017. As per the Investigating Officer (P.W.11), the victim was recovered on 13 th September, 2017 from a Hotel near I.T.I More, Bokaro along with co-accused, Taslim Ansari on the basis of a secret information. Learned counsel for the appellant has placed the statement of the victim recorded under Section 164 Cr.P.C on 14th September, 2017 by Judicial Magistrate (P.W.9) where she has stated that her father and

brother informed her that it is a room in Goa when she became conscious. In reply to the Court's question, she stated that she does not know whether any physical relationship was established with her. During her examination as P.W. 6 she has answered to the Courts' question that rape was committed upon her. The Investigating Officer, in his deposition, does not make any mention of the prosecution story of the victim that she was taken from Dhanbad to Kolkata and then to Goa in a train by the appellant and other co-accused by making her unconscious. P.W.4 informant-father has, in his statement during trial at Paras- 4 & 5 stated about rape upon the victim, but at para-26 he admits that he did not make any statement about rape before the police during investigation. Therefore, it is an improvement. Further, at Para-24, the informant has also stated that he came to know from police station that the victim is at Goa, whereas as per Investigating Officer (P.W.11) victim was recovered from a Hotel near I.T.I More, Bokaro having breakfast with other co-accused, Taslim Ansari. It is submitted that the Doctor (P.W.10), who examined her on 13th September, 2017 did not find any internal or external injury on her private area or anal region. Her age was shown as 18 years as per the Radiological examination. She was not pregnant. As per the opinion of the Doctor, she had sexual intercourse before but no sign of recent sexual intercourse was found. It is submitted that the allegation of kidnapping and taking the girl to Goa is a concoction, unsupported by any material found during investigation. The victim as well as her father both have improved as respects the allegation of rape during trial compared to what has been stated under Section 164 Cr.P.C by the victim and the statement of the father recorded under Section 161 Cr.P.C. It is submitted that the appellant was tried separately by the Children Court finding him to be a Juvenile, but conviction of the appellant is based upon wholly unreliable evidence and the sentence is wholly disproportionate to any such alleged offence. As such, appellant who has remained in custody since 20th November, 2019 after his conviction, may be enlarged on bail.

Learned Additional Public Prosecutor, Mrs. Niki Sinha has opposed the prayer. She submits that the victim is minor as per the Investigating Officer, who has obtained School Admission Register showing her date of birth as 3rd March, 2003. P.W. 6 has also stated that she was 16 years old studying in Class-VIII when the occurrence took place. Victim has further explained during deposition that out of fear of Taslim Ansari, co-accused, she did not disclose the incidence of gang rape upon her. She has also shown a cut mark in her arms

which was caused by the accused, Tasleem Ansari and this appellant in order to make her unconscious by injecting some intoxicating substance. As such, appellant may not be enlarged on bail.

We have considered the submission of learned counsel for the parties and taken note of the relevant materials relied upon by learned counsel for the parties from the Lower Court Records. On consideration of the materials on record and on submission of learned counsel for the parties, it appears that the entire story relating to abduction of the victim and taking her to Goa is uncorroborated by any investigated material as appears from the statement of the Investigating Officer. It further appears that the victim was recovered from a Hotel near I.T.I More, Bokaro, whereas the father and the victim both alleged she was taken to Goa and the father had seen her there in the room. The Medical Officer has not found any internal or external injury upon the victim on being examined on 13th September, 2017 as per medical report (Ext.-7), and had opined that there was no sign of recent sexual intercourse.

On consideration of the totality of the facts and circumstances noted above, we are inclined to grant bail to the appellant by suspending his sentence during pendency of this appeal. Accordingly, appellant, above-named, shall be released on bail, during the pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned Additional Sessions Judge-1st-cum- Special Judge-cum-FTC, Bokaro in connection with Children Court Case No. 02/2019 with the condition that appellant and his bailors shall not change their address or mobile number without permission of the learned Trial Court.

I.A. No. 3294 of 2021 stands allowed.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Jk/