Md. Alam vs The State Of Jharkhand
2021 Latest Caselaw 2150 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr. Appeal (D.B.) No. 333 of 2020
                                       .....

       Md. Alam                                                  --- --- Appellant
                                       Versus
       The State of Jharkhand.                                   -- --- Respondent
                                           ---

CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh The Hon'ble Mrs. Justice Anubha Rawat Choudhary Through Video Conferencing

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For the Appellant : Mr. Vishal Kumar Trivedi, Adv.

Mr. Bhaskar Trivedi, Adv.

             For the State             : Ms. Nehala Sharmin, A.P.P.
             For the Complainant       : Mr. Shailendrajit, Adv.
                                           ---

05/01.07.2021       Heard learned counsel for the appellant Mr. Vishal Kumar

Trivedi, learned A.P.P. Ms. Nehala Sharmin for the State and Mr. Shailendrajit for the complainant on the prayer for suspension of sentence made through I.A. No.2447 of 2021.

The sole appellant stands convicted for the offence punishable under Sections 376(1) and 323 of the I.P.C. by the impugned judgment dated 24.02.2020 passed in S.T. No.146/2018 by the court of learned District and Additional Sessions Judge-VI, Giridih and has been sentenced to undergo RI for 10 years with a fine of Rs.25,000/- and a default sentence for the offence punishable under Section 376(1) of the IPC and further sentenced to undergo RI for one year for the offence punishable under Section 323 of the IPC, vide impugned order of sentence dated 27.02.2020.

Learned counsel for the appellant submits that the last occurrence as per the prosecutrix P.W.3 is of 24th September 2016 when allegedly the appellant ravished her when she had gone to attend the nature's call along with her cousin sister and thereafter she reported the matter to the parents. As per the prosecutrix, the first occurrence is of 27th March 2015 when the appellant came into her house and forced himself upon her on the point of knife. A complaint case was lodged after one month on 24 th October 2016 without any worthwhile explanation. Though the prosecutrix alleged that she had to abort pregnancy, but she could not tell the name the doctor nor was able to remember the date of such abortion. She has also stated that she is ready to marry the appellant who is a co-villager. It is submitted that the victim was not examined by any Doctor and as such there is no medical

evidence of rape. Apart from the related witnesses P.W.1 who is the cousin sister who allegedly accompanied her while going for attending nature's call, P.W.2 mother and P.W.4 father, there is no other witnesses to support the occurrence. It is apparent from the case of the prosecutrix that their physical relationships continued though allegedly on the promise of marriage and when he refused to marry, the case was instituted. In the aforesaid circumstances, the conviction of the appellant for the charge under Section 376(1) of the I.P.C. is wholly unsustainable. The appellant, who is aged 23 years only, may be enlarged on bail, otherwise his career and life may be ruined.

Learned A.P.P. and learned counsel for the informant have opposed the prayer. It is submitted that the evidence of the prosecutrix is sufficient in a matter of rape, though in the instant case another eye-witness P.W.1 her cousin sister has supported the occurrence. The appellant continued physical relationship on the pretext of marriage and therefore there was no consent within the meaning of Section 90 of the I.P.C. As such, offence under Section 376 has been duly established on the basis of the materials adduced during trial. Appellant may not be enlarged on bail since he is in custody only since the date of conviction.

We have considered the submissions of learned counsel for the parties and taken into account the materials relied upon by them from the lower court records.

It appears from the facts and circumstances noted above and the materials on record that there is no medical evidence of rape nor the victim has been able to give the name of the doctor or the date on which her alleged pregnancy was aborted. The complaint case was lodged after one month of the alleged last incidence of rape whereas the prosecutrix has also alleged that physical relationship continued after the first incidence.

Having regard to the aforesaid facts and circumstances, we are inclined to enlarge the appellant on bail during pendency of the appeal by granting suspension of sentence. Appellant is directed to be released 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 District and Additional Sessions Judge-VI, Giridih in connection with S.T. No.146 of

2018 with the condition that the appellant as well as his bailors shall not change their addresses and mobile numbers, if any, without prior permission of the learned trial court. I.A. No.2447/2021 stands disposed of.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.) Shamim/