Jharkhand High Court
Nitesh Kumar Mehta @ Nitesh Kumar vs State Of Jharkhand on 1 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 19 of 2020
Nitesh Kumar Mehta @ Nitesh Kumar --- --- Appellant
Versus
State of Jharkhand --- --- Respondent
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Appellant : Mr. Sarju Prasad, Advocate
For the State : Mrs. Lily Sahay, A.P.P.
07/01.12.2021 Heard learned counsel for the appellant Mr. Sarju Prasad and Mrs.
Lily Sahay, learned A.P.P. on the prayer for suspension of sentence made
by the appellant through I.A. No. 4284 of 2021.
Sole appellant stands convicted for the offences punishable under
Section 376(2) of the I.P.C. and Section 4 of the POCSO Act by the
impugned judgment dated 20.11.2019 passed in G.R. No. 1116 of 2018 by
the court of learned Additional Sessions Judge-I cum Spl. Judge POCSO
Act, Hazaribag and has been sentenced to undergo R.I. for 20 years with a
fine of Rs.10,000/- and a default sentence by the impugned order of
sentence dated 25.11.2019. No separate sentence has been awarded under
Section 4 of the POCSO Act in view of Section 42 thereof.
Learned counsel for the appellant submits that victim is the
prosecutrix (P.W.5), who has instituted the F.I.R. on 19.04.2018 after two
days of the occurrence alleging rape by the appellant at around 12.00
noon when she had gone to relieve herself near Ghaghra river. According
to her, she informed the incidence to her parents and thereafter discussion
took place, which is the reason for the delay in institution of the F.I.R. It is
further submitted that the victim was examined on 19.04.2018 by the
doctor P.W.1. The medical report is adduced as Ext. 1. She has not found
any external or internal injury on the body of the victim. Hymen is old
torn and no spermatozoa was found in the vaginal smear. No definite
opinion of rape can be given. As per the radiological examination, age of
the victim was assessed to be 15-16 years. It is further submitted that
P.W.2 mother of the victim has stated that the matter was taken up in the
Mahila Samaj. The victim was kept for the whole night at the appellant's
place. The victim P.W.5 has also stated that members of Mahila Samaj
were called and at night parents of the appellant took her to their house
and released her at 4.00 a.m. near her house. Thereafter, F.I.R was lodged.
The victim (PW.5) has also stated that appellant got married about 1-2
months before filing of the case. The description of the place of
occurrence by the victim, as per the Investigating Officer (P.W.7), does
not show that it was a dense forest. Moreover, mother of the victim P.W.2
has also stated that appellant was already married and that victim had
gone to the house of the appellant for the whole night and on the second
day parents of the appellant left her at her house. The defence witnesses
have stated that parents of the victim wanted appellant to marry her,
however, when he refused to marry, false case was instituted. It is
submitted that the appellant is in custody since 22.05.2018 i.e., 3 years
and 6 months by now. Therefore, he may be enlarged on bail as he is also
a young boy aged 22 years now.
Learned A.P.P. has opposed the prayer. He submits that victim, a
minor aged 15-16 years, has been subjected to forcible sexual intercourse,
though the doctor (P.W.1) may not have found evidence of any injury or
rape as she was examined on third day of the occurrence. Therefore,
appellant may not be enlarged on bail.
We have considered the submission of learned counsel for the
parties and taken note of the materials relied upon by them from the lower
court record including the period of custody undergone by the appellant.
On consideration of the materials on record, the statements of the mother
of the victim P.W.2, Aunt P.W.3, the victim P.W.5, who has stated that
appellant was married 1-2 months before filing of the case and the doctor
P.W.1 has not found any evidence of external or internal injury upon the
victim on her examination on 19.04.2018 nor she could give any definite
opinion of rape, we are inclined to grant the privilege of suspension of
sentence to the appellant.
Accordingly, the appellant, named above, during the pendency of
this appeal, shall be enlarged on bail 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-I cum Spl.
Judge, POCSO Act, Hazaribag in connection with G.R. No. 1116 of 2018
with the condition that he and his bailors shall not change their address
or mobile number without permission of the learned Trial Court and that
appellant as well as his bailors would also submit the Aadhar Card
before the court below at the time of furnishing bail bonds.
I.A. No. 4284 of 2021stands allowed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
A.Mohanty
