Rajeev Mahto vs The State Of Jharkhand
2021 Latest Caselaw 3468 Jhar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr. Appeal (DB) No. 1163 of 2019
                Rajeev Mahto                                                ....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. Anjani Kumar, Advocate
                For the State          : Mr. Tapas Roy, A.P.P
                For the Victim         : Mr. Prabhas Chandra Jha, Advocate
                                              ---

06/16.09.2021 Heard learned counsel for the appellant, Mr. Anjani Kumar, learned A.P.P, Mr. Tapas Roy and Mr. Prabhas Chandra Jha, learned counsel for the victim on the prayer for suspension of sentence made by this appellant through I.A. No. 3476 of 2021.

Sole appellant on being declared child in conflict with law by Juvenile Justice Board was tried by the Court of learned Additional Sessions Judge-I-cum- Special Judge, Children's Court, West Singhbhum at Chaibasa in Children Case No. 06 of 2019 and has been held guilty for the offence punishable under Sections 366, 376 (3) and 379 of I.P.C and Section 4 of POCSO Act by the impugned judgment dated 30.09.2019. Appellant has been sentenced to undergo Rigorous Imprisonment for 22 years with a fine of Rs. 20,000/- under Section 376(3) of I.P.C and default sentence and further sentenced to undergo Rigorous Imprisonment for 8 years with a fine of Rs. 10,000 and default sentence under Section 366 of I.P.C and has also been sentenced to undergo Rigorous Imprisonment for 2 years under Section 379 of I.P.C. However, no separate sentence has been awarded under Section 4 of POCSO Act by the impugned order of sentence dated 30.09.2019. All the sentences have been ordered to run concurrently.

Learned counsel for the appellant submits that the victim in her deposition has categorically stated that she was in love with the appellant and had voluntarily gone with him. She has also stated that if the appellant had married, she would not have lodged this case. It is submitted that the victim has been assessed to be between 15-16 years of age by the doctor (P.W.5), vide Medical report (Ext.-3). As per the date of birth certificate obtained by the Investigating Officer from the school (Ext.-6), she was born on 5th February, 2005, but the appellant has also been found to be aged 16 years 5 months and 20 days by the Juvenile Justice Board. As such, he was also a juvenile, who did not understand the consequences of his act. The doctor has also not found any mark of violence on the body or private part, though he has opined that sexual intercourse took place. It is submitted that the

manner in which the victim has stayed for 4 days with the appellant and did not make any complain against the appellant for using any force against her and the statement of P.W. 6, cousin sister of the appellant, where the victim had stayed, also shows that everything was normal in their house. It is therefore a consensual act and since the appellant is also young boy of about 19 years now staying in remand home, therefore, appellant may be allowed bail, so that he can reform himself and come back in the mainstream of the society. He has been in custody since 5th April, 2019 i.e., about 2 years and 5 months by now.

Learned Additional Public Prosecutor for the State and learned counsel for the victim have opposed the prayer. It is submitted that the appellant was tried in a Children Court after being declared a Juvenile in conflict with law for having perpetrated heinous offence of rape upon the victim, who was aged about 14 years on the date of incidence as per her date of birth certificate and as per Radiological examination by the doctor (P.W. 5) she was between 15-16 years of age. The victim cannot be said to have consented to such an act being minor. The medial report also confirms that sexual intercourse took place and other observations made by the Doctor shows that the victim was subjected to sexual intercourse. Therefore, the appellant may not be enlarged on bail by suspending his sentence.

We have considered the submission of learned counsel for the parties and taken note of the relevant materials relied upon by them from the Lower Court Records, including the period of custody undergone by the appellant. On consideration of the materials on record specifically the age of the victim as per the date of birth certificate (Ext.-6), medical report (Ext.-3) and the statement of prosecution witnesses like the victim (P.W.1), P.Ws. 2 and 3, mother and father as also P.W. 6 the cousin sister of the appellant and that the doctor has also found the victim to have undergone sexual intercourse, we are not inclined to enlarge the appellant on bail by suspending his sentence during pendency of this appeal, at this stage. Accordingly, his prayer for bail is rejected.

I.A. No. 3476 of 2021 stands dismissed.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Jk/