Manoj Kumar Chouhan vs The State Of Jharkhand
2021 Latest Caselaw 2197 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Criminal Appeal (DB) No. 1232 of 2018
     Manoj Kumar Chouhan                                      --- --- Appellant
                              Versus
     The State of Jharkhand                               --- --- Respondent

                                   .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Through Video Conferencing For the Appellant : Mr. B.M. Tripathy, Sr. Advocate & Nutan Kumari Sharma, Advocate For the Respondent : Mr. Manoj Kumar Mishra, A.P.P.

: Mr. Shashank Shekhar Prasad, Advocate

04/05.07.2021 Heard Mr. B.M. Tripathy, learned Senior Counsel for the appellant assisted by learned counsel, Ms. Nutan Kumari Sharma; learned A.P.P. Mr. Manoj Kumar Mishra for the State and learned counsel Mr. Shashank Shekhar Prasad for the informant on the prayer for suspension of sentence of the appellant made through I.A. No. 2428 of 2021.

The sole appellant stands convicted for the offence punishable under Sections 376(2) of the I.P.C and under Section 6/12 of the POCSO Act by the impugned judgment dated 26.09.2018 passed in Special POCSO Case No. 50 of 2017 by the learned Additional Sessions Judge - 1st cum Special Judge cum FTC, Bokaro and has been sentenced to undergo R.I. for 10 years and a fine of Rs. 10,000/- with a default sentence for the offence punishable under Section 376(2) I.P.C by the impugned order of sentence dated 28.09.2018 No separate sentence has been awarded under the POCSO act in view Section 42 of the POCSO Act.

Learned counsel for the appellant submits that the case of the prosecution as per written report of P.W.6 dated 29.05.2017 is that she was forcibly taken by the appellant who is a neighbour on a motor cycle driven by one Sunil Chouhan on 25.05.2017 while she was on her way to school. She was subjected to forcible sexual intercourse in a quarter at Dugda. Earlier also the accused had made physical relation with the victim on two occasions and assured her to marry. However, on the date of occurrence, the appellant refused to marry her, instead demanded Rs. 5 Lakhs in the bargain to marry her. P.W.6 has stated that she was born on 10.08.2002 and she is a student of Class X. Ext.4 Matric Registration Certificate has been adduced by the prosecution in support. It is further stated that when talks of compromise failed then the case was instituted

on 29.05.2017. It is submitted that P.W.3 Shanti Devi, mother of the victim in her deposition stated that when the accused ravished her daughter for third time then the victim disclosed it to her. For 1 ½ years the victim used to go to the quarter of the appellant. P.W.3 Shanti Devi has never scolded her about the said relationship. It is submitted that the victim was examined by P.W.8 Dr. Shilpi Anand on 29.05.2017. The victim was found to be 17-18 years of age as per the radiological examination. No evidence of injury was found on her private part. The doctor found that it is difficult to say whether rape has been committed or not. It is further submitted that the Investigating Officer had during course of investigation examined the admission form of the victim in Sunrise School as per which her date of birth is 10.01.1998. The investigating officer has also stated that on examination of the service book of the father of the victim, the date of birth of the victim was recorded as 10.08.1998. The defense has examined D.W.1, who is the teacher of Sunrise School. It is submitted that the victim on the date of occurrence was major as per the materials collected by the Investigating Officer during examination and even as per the radiological examination she was about 17-18 years of age. She has admitted that she was having love affairs for 1 ½ years with the appellant. In those circumstances, appellant who is in custody since 30.05.2017 may be enlarged on bail on granting him privilege of suspension of sentence.

Learned A.P.P. has opposed the prayer. He submits that the victim was minor on the date of occurrence as per the date of birth 10.08.2002 evident from Ext.4 the matriculation registration card. She had been subjected to sexual intercourse even prior to the date of occurrence as per the case of the victim, apparently when she was a minor. Therefore, appellant may not be enlarged on bail.

We have considered the submissions of learned counsel for the parties and taken into note the relevant material evidence borne from the lower court records and also relied upon by them. On consideration of the materials on record and submissions of the parties, it appears that the victim though stated her date of birth as 10.08.2002 but the Investigating Officer on inquiries from one Sunrise School and service book of her father found that she was born in 1998 whereas the occurrence took place on 25.05.2017. As per the radiological examination also the victim

was found to be 17-18 years of age and no sign of any injury on the private part was found though she was examined on 29.05.2017 by Dr. Shilpi Anand P.W.8. It further appears from the case of the prosecution that the victim was having a love affairs for 1 ½ years with the appellant. In the aforesaid circumstances, we are inclined to grant the privilege of suspension of sentence to the appellant, who has remained in custody for more than 4 years by now. Accordingly, the appellant above named, 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. 50 of 2017 with the condition that he and his bailors shall not change their address or mobile number without permission of the learned Trial Court.

I.A. No. 2428 of 2021 stands allowed.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary,J.)

A.Mohanty