Bhim Mahato @ Abhilash Mahto vs The State Of Jharkhand
2021 Latest Caselaw 4534 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Criminal Appeal (DB) No. 437 of 2020
     Bhim Mahato @ Abhilash Mahto                    --- --- Appellant
                                   Versus
     The State of Jharkhand                          --- --- Respondent
                             .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant : Mr. Rajesh Kumar, Advocate For the State : Mr. Sanjay Kr. Shrivastava, A.P.P.

     For the victim             : Ms. Shamma Parveen, Advocate

07/01.12.2021    Heard learned counsel for the appellant Mr. Rajesh Kumar ;

learned A.P.P. Mr. Sanjay Kr. Shrivastava and Ms. Shamma Parveen representing the victim on the prayer for suspension of sentence made by the appellant through I.A. No. 6451 of 2021.

Sole appellant stands convicted for the offences punishable under Sections 366A, 376(2) of the I.P.C. and Section 6 and 12 of the POCSO Act by the impugned judgment dated 27.05.2020 passed in Children Court Case No. 17 of 2019 by the court of learned Additional Sessions Judge-1st cum Special Judge cum FTC, Bokaro and has been sentenced to undergo R.I. for 14 years with a fine of Rs.20,000/- and a default sentence u/s 376(2) I.P.C; R.I. for 7 years with a fine of Rs.10,000/- and a default sentence u/s 366(A) I.P.C. and R.I. for 2 years with a fine of Rs.5000/- and a default sentence u/s 12 of the POCSO Act by the impugned order of sentence dated 29.05.2020. No separate sentence has been awarded u/s 6 of the POCSO Act in view of Section 42 thereof. All the sentences were ordered to run concurrently.

Learned counsel for the appellant submits that as per the victim (P.W.2) on 29.05.2019 at 10.30 p.m. when she went out to relieve herself appellant forcibly took her away in a car to Purulia, then to Secunderabad by train and kept her for 10 days where she was subjected to forcible sexual intercourse. On 12.06.2019 the Police and her father rescued her. According to Ext.5, her date of birth is 16.09.2002. It is submitted that the doctor P.W.11 has not found any external or internal injury on the victim, who has examined her on 15.06.2019 vide Ext.6. Hymen was found to be old ruptured. Age of the victim was about 16-17 years as per the radiological examination and no spermatozoa was found

in the vaginal swab. It is submitted that the victim surprisingly did not raise any alarm while she was taken away from Chandankiyari to Purulia and then to Secunderabad by train and even while she was staying with the appellant for 10 days. It is further submitted that the victim and the appellant had love affair and victim has now through an affidavit filed in this appeal, come out with a true picture that both are in love and want to live as husband and wife. As per the assessment of age of the victim by the doctor, the benefit of + 2 years of age should be given to the accused side. Appellant himself is about 21 years of age and is in custody since 12.06.2019. Therefore, he may be enlarged on bail by suspending his sentence.

Learned A.P.P. has opposed the prayer. He submits that the victim was abducted and subjected to sexual intercourse for 10 days and the report of the doctor also shows that hymen was old ruptured on examination on 15.06.2019 i.e., after 1 month of the incidence.

Learned counsel for the victim has however supported the case of the appellant. According to her, the victim and the appellant are inclined to marry each other and live as husband and wife. Victim has been living in a shelter home since she was rescued.

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 records including the period of custody undergone by the appellant. On consideration of the materials on record, the assessment of age of the victim by the doctor, which is about 16-17 years and that she has not found any external or internal injury upon the private part of the victim and that the victim, though being taken from one place to another and also by train to Secunderabad by the appellant has not raised any alarm, 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-1st cum

Special Judge cum FTC, Bokaro in connection with Children Court Case No. 17 of 2019 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. 6451 of 2021stands allowed.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.)

A.Mohanty