Jharkhand High Court
Nitesh Kumar @ Rocky vs The State Of Jharkhand on 17 November, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 30 of 2018
Nitesh Kumar @ Rocky --- --- 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 : Ms. Rashmi Kumar, Advocate
For the State : Ms. Kumari Rashmi, A.P.P.
---
07/17.11.2021 Heard learned counsel for the appellant Ms. Rashmi Kumar and
learned A.P.P. Ms. Kumari Rashmi on the prayer for suspension of sentence of
the appellant made through I.A. No.5358 of 2021.
Sole appellant stands convicted for the offence punishable under
Section 376 of the I.P.C. and Section 5 read with Section 6 of the POCSO Act
vide impugned judgment of conviction dated 9th May 2017 passed in Special
(P) Case No. 23/2016 by the learned court of District & Additional Sessions
Judge-I cum Special Judge, Dhanbad and has been sentenced to undergo
rigorous imprisonment for 10 years under Section 5 read with Section 6 of the
POCSO Act with a fine of Rs.20,000/- and a default sentence, however no
separate sentence has been awarded under Section 376 of the I.P.C. because of
the alternative punishment under POCSO Act and the provision under Section
42 thereof, vide impugned order of sentence dated 11th May 2017.
Learned counsel for the appellant submits that the ingredients of
aggravated penetrative sexual assault as alleged in the F.I.R. instituted on 29 th
March 2016 after three days of the incidence, do not seem to be made out
from the medico legal report (Ext.5) adduced by the Doctor (P.W.10). He has
opined that there are no marks of violence on vulva, vagina, thigh and
perineum, though hymen was old torn with no bleeding. The girl was assessed
to be between 13-16 years of age which discredits the case of the prosecution
as made out in the F.I.R. where the victim was stated to be 8 years old. It is
submitted that P.W.10 Doctor during his cross-examination has stated that the
torn hymen could be 10-15-20 days old but definitely not 3-4 days old. There
was no sign of violation around the private part. It is submitted that the
prosecution story is otherwise also not credible since the informant/father
(P.W.4), his wife (P.W.3) and other children had gone to the father-in-law's
house of the informant leaving behind an eight year's old girl as alleged, who
was taken by the appellant being maternal uncle in relation at 5:00 P.M. inside
his house which is at a distance of 15 steps and forced himself upon her. An
independent witness who is a neighbhour (P.W.7) has turned hostile and has
not supported the case of the prosecution. There is a delay in institution of the
F.I.R. also. Therefore, the appellant who has remained in custody for about 5
years and 8 months since being taken in custody on 1st April 2016, may be
released on bail as he has undergone more than half of the sentence also.
Learned A.P.P. has opposed the prayer. She submits that the
appellant is a maternal uncle in relation of the victim who is a minor as also
found during radiological examination by the Doctor who has indulged in
forcible sexual intercourse in an act which denigrates all sanctity of such
relationships. The victim P.W.3 has supported the occurrence in her statement
made under Section 164 of the Cr.P.C. before P.W.9 Judicial Magistrate
(Ext.4) and also during deposition. Therefore, the appellant may not be
enlarged on bail.
We have considered the submissions of learned counsel for the
parties and taken note of the materials on record including the period of
custody undergone by the appellant.
The appellant has been convicted under Section 6 of the POCSO
Act. P.W.10 Doctor who examined her and adduced the medico legal report
(Ext.5) has found no mark of violence on vulva, vagina, thigh or perineum
and has also stated in his cross-examination that the torn hymen could be not
less than 10-15-20 days old, definitely not 3-4 days old as per allegations of
rape made in the F.I.R. Appellant has remained in custody for 5 years and 8
months by now against the sentence of 10 years.
Considering all the facts and circumstances noted above, we are
inclined to grant the privilege of suspension of sentence to the appellant
during pendency of the appeal. 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-I cum Special Judge, Dhanbad in connection with Spl.(P)
Case No. 23 of 2016 subject to deposit of fine amount before the learned court
below 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 and shall submit Aadhar Cards at the time of his
release. I.A. No.5358/2021 stands disposed of.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Shamim/
