Jharkhand High Court
Sunil Mandal @ Sunil Kumar Mandal vs The State Of Jharkhand on 3 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 519 of 2020
Sunil Mandal @ Sunil Kumar Mandal --- --- 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 : M/s A.K. Kashyap, Sr. Adv., Anurag Kashyap, Adv.
For the State : Mr. Shailendra Kumar Tiwari, A.P.P.
05/03.11.2021 Heard learned Senior Counsel for the appellant Mr. A.K. Kashyap
and Mr. Shailendra Kumar Tiwari, learned A.P.P. on the prayer for
suspension of sentence made by the appellants through I.A. No. 5679 of
2021.
Sole appellant stands convicted for the offence punishable under
Sections 363,366,342,376(1) of the I.P.C and Section 6 of the POCSO Act
by the impugned judgment dated 22.06.2020 passed in POCSO Case No.
70 of 2017 by the court of learned Special Judge, POCSO, Deoghar and
has been sentenced to undergo R.I. for 4 years with a fine of Rs.4000/-
and a default sentence u/s 363 I.P.C.; R.I. for 5 years with a fine of
Rs.5000/- and a default sentence u/s 366 I.P.C.; R.I. for 1 year u/s 342
I.P.C. and R.I. for 12 years with a fine of Rs. 20,000/- and a default
sentence u/s 376(1) I.P.C. by the impugned order of sentence dated
27.06.2020. All the sentences have been ordered to run concurrently. No
separate sentence has been awarded u/s 6 of the POCSO Act in view of
Section 42 of the POCSO Act.
Learned Senior Counsel for the appellant submits that the
prosecution story as per the fardbeyan of the informant father (P.W.4) of
kidnapping his minor daughter- victim (P.W.6) causing illegal
confinement and also rape is not worth credence as by the prosecution
case itself, it is apparent that the alleged abduction took place at a busy
tempo stand at 07.30 a.m. in the morning where in the involvement of the
appellant and his family members were alleged but the Police during
investigation has not found any material to charge-sheet any other person
or family members as accused apart from the appellant. It is submitted
that the victim was assessed to be between 16-17 years by the doctor
(P.W.7), member of the Medical Board, on her examination on
17.10.2017. The doctor found hymen old ruptured; no mark of violence
found in her private parts and as per the opinion of the Medical Board, no
definite opinion about recent sexual intercourse at the time of examination
could be given. In her cross examination the doctor (P.W.7) has also stated
that there is a possibility of variation of 2 years in the report and no
positive sign of rape was found at the time of examination. It is submitted
that as per the statement of the victim during trial, she had gone along
with the appellant to the court on 16.10.2017, though she alleges that she
was threatened by the appellant by a pistol. It is submitted that if the
victim was in the illegal confinement and custody of the appellant since
her abduction on 07.10.2017 till 16.10.2017 and was repeatedly subjected
to rape and beaten up by 4 to 5 friends of the appellant, it is wholly
unlikely that any mark of violence on the external part of the body or
private parts could not be found when she was examined on 17.10.2017.
Even as per the opinion of the Doctor (P.W.7), if the age of the victim is
16-17 years and plus minus 2, the benefit is to be extended to the accused.
It is submitted that at best the case could be of elopement between the two
young persons. The appellant also being about 19 years of age at the time
of occurrence. Learned Trial Court has also taken note that this is the first
offence of the appellant in the order of sentence. The victim adduced only
secondary document / evidence of her date of birth, which was marked
'X'. P.W.1 to P.W.3 have turned hostile and the Investigating Officer has
not been examined in this case. Therefore, the appellant, who is young
boy of about 21years may be enlarged on bail as he is in custody since
16.10.2017. i.e., more than 4 years.
Learned A.P.P. has strongly opposed the prayer. He submits that the
prosecution evidence of the informant, father and the victim along with
the assessment of age of the victim by the Medical Board fully
corroborate the allegation made in the F.I.R that appellant had abducted
the victim and had kept her for 9 days in illegal confinement and
repeatedly committed rape upon her. Therefore, he may not be enlarged
on bail.
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.
On consideration of the materials on record in the light of the submissions
of the parties, it appears that the victim was assessed between 16-17 years
of age and even on being examined on 17.10.2018, one day after she went
along with the appellant to appear in the court, there was no mark of
violence on her private parts and no opinion of definite sexual intercourse
could be given by the doctor (P.W.7). Appellant has also remained in
custody for slightly more than 4 years. Taking into account the facts and
circumstances noted above and the period of custody undergone by the
appellant, we are inclined to grant the privilege of suspension of sentence
to the appellant.
Accordingly, 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 Special Judge, POCSO, Deoghar in
connection with POCSO Case No. 70 of 2017 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. 5679 of 2021 is allowed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
A.Mohanty
