Pradeep Giri vs The State Of Jharkhand
2021 Latest Caselaw 4244 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 Cr. Appeal (DB) No. 449 of 2020

             Pradeep Giri                                    ---    ---    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. Suraj Singh, Advocate
             For the Respondent: Mr. Suraj Verma, A. P.P
                                              ---

04 / 17.11.2021     Heard learned counsel for the appellant Mr. Suraj Singh and learned

A.P.P Mr. Suraj Verma on the prayer for suspension of sentence of this appellant made through I.A. No. 6138 / 2021.

2. The sole appellant stands convicted for the offence punishable under section 376(2) of the Indian Penal Code and section 4 of POCSO Act by the impugned judgment dated 29.05.2020 passed in POCSO Case No. 543/2017 by the Court of learned Additional Sessions Judge-I-cum-Special Judge, Gumla and has been sentenced to undergo R.I for twelve years with a fine of Rs. 10,000/- and default sentence under section 376(2) of the Indian Penal Code and no separate sentence has been awarded under section 4 of POCSO Act in view of section 42 of POCSO Act, by the impugned order of sentence dated 30.05.2020.

3. Learned counsel for the appellant submits that there is unexplained delay in the institution of the FIR since, as per the version of the victim (PW-3), first incidence had occurred on 02.02.2017 when she had gone out to attend natures' call at 7.30 pm and the second incidence occurred on 17.04.2017 at 10.30 pm when the appellant entered her house from back side and committed rape upon her by closing her mouth, whereas FIR was instituted on 14.06.2017. It is submitted that a completely opposite version has been given by the victim's sister who was examined as PW-13. PW-13 has stated that the appellant committed rape upon her sister on 02.02.2017 at 10.30 pm inside her house and thereafter on 17.04.2017 when she had gone out to attend natures' call. Victim is the maternal aunt of the appellant. Victim has also stated in her application made before the Sisai police station that the appellant was exploiting her physically on the pretext of marriage for six months and whenever she used to insist upon him for marriage, he used to defer her request. There is doubt about her correct age as in the Aadhar Card (Ext.Y/1) her date of birth is inscribed as 11.10.1998 which she had given in the application while instituting the FIR,

whereas she as adduced Ext.4 being the Transfer Certificate issued by Sarsawati Vidya Mandir, Sisai showing her date of birth as 17.08.2002. The doctor (PW-

1) who examined her on 17.06.2017 found no mark or sign of struggle or abrasion or oedema around perineum. Hymen was found to be old ruptured. No spermatozoa was found. She opined vide Ext.1 that sexual activity may have been done earlier. Victim herself proclaimed her age to be 14 years old. It is apparent from the statement of the victim that she was having an affair with the appellant for six months and only after the marriage of the appellant on 05.05.2017, case was instituted on 14.06.2017. Appellant has been in custody since 02.01.2018 and has undergone custody for about three years and eleven months till date.

4 Learned A.P.P has opposed the prayer. He submits that the victim has supported her case during trial about two incidences of rape upon her. Victim was apparently 15 years of age, as per her Transfer Certificate (Ext.4). Doctor has also found the case of old hymen rupture and sexual activity might have been done earlier, though no sign of struggle or injury was found on her private part as the victim was examined on 17.06.2017. Therefore, appellant may not be enlarged on bail.

5. We have considered the submissions of learned counsel for the parties and taken note of the materials relied upon from the lower court records including the period of custody undergone by the appellant till date. Having regard to the contradictory statement of the victim (PW-3) and her sister (PW-13) regarding the two instances of rape on 02.02.2017 and 17.04.2017 and statement of the victim that she was in relationship with the appellant for six months and also that the FIR was lodged on 14.06.2017 after considerable delay, we are inclined to enlarge the appellant on bail by suspending his sentence also taking into account the period of custody for three years and eleven months undergone by him till date. Accordingly, Appellant Pradeep Giri 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-I-cum- Special Judge, Gumla in POCSO Case No. 543/2017, subject to deposit of fine amount of Rs. 10,000/- imposed by the learned Trial Court and 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 beforethe learned Trial Court at the time of his release. I.A. No. 6138 / 2021 stands disposed of.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Ranjeet/