Jharkhand High Court
Ramesh Prasad vs The State Of Jharkhand on 15 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 423 of 2020
Ramesh Prasad --- --- 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. Samavesh Bhanj Deo, Advocate
For the Respondent: Mr. Anup Pawan Topno, A. P.P
---
07 / 15.12.2021 Heard learned counsel for the appellant Mr. Samavesh Bhanj Deo and
learned A.P.P. Mr. Anup Pawan Topno on the prayer for suspension of sentence
of this appellant made through I.A. No. 5188/ 2021.
2. The sole appellant stands convicted for the charges punishable under
section 376 (2) of the Indian Penal Code and section 6 of POCSO Act by the
impugned judgment dated 24.05.2019 passed in Special (POCSO) No. 49/2016
by the Court of learned Additional Sessions Judge-III-cum-Special Judge
(POCSO), Dhanbad and has been sentenced to undergo R.I for ten years with a
fine of Rs. 25,000/- and a default sentence under section 376 (2), but no
separate sentence has been awarded under section 6 of POCSO Act in view of
section 42 thereof, by the impugned order of sentence dated 27.05.2019.
3. Learned counsel for the appellant submits that the prosecution was set in
motion on the written report of mother of the victim (PW-1) that on 22.03.2016
at 2.00 pm when she returned home, she found her daughter aged 15 years who
is dumb and this appellant in naked condition on the bed. Victim has
complained of forcible sexual intercourse. However, it is submitted that the
victim who was examined as PW-4 through an interlocutor, has not
corroborated the prosecution story, but has identified the appellant through her
gesture. During cross-examination, it has transpired that the appellant was the
resident of same locality (mohalla). The medical evidence however does not
support the allegation of forcible sexual intercourse. The doctor (PW-6) who
examined the victim on 24.06.2016 at 6.00 pm and adduced the medical report
(Ext.3) has stated that there were no external or internal injuries on her private
part; hymen was intact; no spermatozoa found on the vaginal swab. Victim was
found to be above 18 years of age, as per the radiological examination. He
submitted that PWs-2 & 3 have turned hostile. The Investigating Officer
(PW-5) has stated that since the victim was deaf and dumb, her statement under
section 164 of the Cr. P.C could not be recorded. Garments of the victim or the
appellant were not sent to Forensic Science Laboratory for examination. From
the place of occurrence, no such suspicious material was found which could
show that the incidence of rape took place. It is submitted that the appellant has
been in custody since 23.06.2016 i.e. about five months and six months till date
against the sentence of ten years. As such, he may be enlarged on bail by
suspending the period of sentence.
4 Learned A.P.P has opposed the prayer. He submits that the victim was
dumb. As per the statement of the mother (PW-1) when she reached her home,
victim was found in naked condition with the appellant and she also complained
of forcible sexual intercourse. As such, appellant may not be enlarged on bail.
5. Upon consideration of the submissions of learned counsel for the parties
and the materials relied upon by them from the lower court records including
the period of custody undergone by the appellant, it appears that the opinion of
the doctor (PW-6) is on divergence from the prosecution story set up by the
mother of the victim (PW-1). Taking into account all the facts and
circumstances noted above and the period of custody i.e. more than half of the
sentence undergone by the appellant, we are inclined to enlarge the appellant on
bail by suspending his sentence during pendency of this appeal. Accordingly,
Appellant shall be released on bail, during 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-III-cum-Special Judge (POCSO), Dhanbad in Special (POCSO) No.
49/2016, subject to the condition that the appellant and his bailors shall not
change their address or mobile nos. without permission of the learned Trial
Court and Appellant and his bailors shall also furnish their Aadhar Card before
the learned Trial Court at the time of his release. I.A. No. 5188 / 2021 stands
disposed of.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Ranjeet/
