Jharkhand High Court
Brajesh Hembrum vs State Of Jharkhand on 8 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 111 of 2020
Brajesh Hembrum --- --- 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.Awnish Shankar, Advocate
For the State : Mrs. Priya Shreshtha, Spl.P.P.
06/08.12.2021 Heard learned counsel for the appellant Mr. Awnish Shankar and
Mrs. Priya Shrestha, learned Spl.P.P. on the prayer for suspension of
sentence made by the appellant through I.A. No. 1690 of 2021.
Sole appellant stands convicted for the offence punishable under
Section 376(2) I.P.C. and Section 6 of the POCSO Act while co-accused
Sarita Devi has been acquitted of all the charges by the impugned
judgment dated 23.09.2019 passed in Special POCSO Case No. 24 of
2018 by the court of learned Additional Sessions Judge 1 st cum Special
Judge cum FTC, Bokaro and the appellant has been sentenced to
undergo R.I. for 14 years with a fine of Rs.10,000/- and a default
sentence u/s 376(2) I.P.C. by the impugned order of sentence dated
25.09.2019. No separate sentence has been awarded u/s 6 of the POCSO
Act in view of section 42 thereof.
Learned counsel for the appellant submits that the case of the
prosecutrix examined as P.W.3 shows that the appellant developed
intimacy with her by making regular visit to her house and by taking
advantage of the intimate relationship, appellant used to sexually exploit
her on the assurance of marriage. Later on, when it was known to her
parents, a panchayati was held wherein the accused pleaded that he is
already married but is ready to keep her. Marriage of the victim was to
be performed in 2016 but the appellant always used to subject her to
sexual intercourse and ultimately refused to marry her. It is submitted
that allegation of rape is not substantiated not only on the weight of the
oral testimony of the victim and her mother P.W.5 or P.W.4, but the
victim herself refused to get herself medically examined and not
consented to give statement under Section 164 Cr.P.C. The age of the
victim has therefore not been assessed, though in her deposition during
trial she claimed herself to be 19 years of age on 27.06.2019. The photo
copy of the mark sheet adduced by the victim on behalf of the
prosecution was not proved and has been marked 'X' for identification.
In the absence of any corroborative medical evidence, merely on the
statement of the prosecutrix, whose age is not ascertained, this case
could not come within the purview of POCSO Act or even ingredients of
rape has not been established. P.W.2 has turned hostile whereas P.W.1 is
a hearsay witness. No papers of panchayati has either been adduced.
Appellant is in custody since 29.01.2018 i.e., about 3 years and 11
months. Therefore, he may be enlarged on bail by suspending his
sentence.
Learned Spl.P.P. has opposed the prayer. She submits that victim, a
minor was allured into physical relationship by the appellant though he
was married and this continued for more than a year despite panchayati
being held. Therefore, appellant may not be enlarged on bail. However,
she has not been able to dispute that there is no medical evidence of rape.
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.
Having regard to the facts and circumstances of the case noted above and
the period of custody undergone by the appellant and moreover there is
neither any medical evidence to corroborate the allegation of rape nor is
there any proof of age of the victim adduced by the prosecution also, 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 Special POCSO
Case No. 24 of 2018 with the condition that appellant 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. 1690 of 2021 stands allowed.
(Aparesh Kumar Singh, J.)
A.Mohanty (Anubha Rawat Choudhary, J.)
