Jharkhand High Court
Manoj Kumar Nishad vs The State Of Jharkhand on 30 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 196 of 2020
Manoj Kumar Nishad --- --- 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 : M/s Sarju Prasad, Atma Ram Choudhary, Advocates
For the Respondent : Mr. P.K. Appu, A.P.P.
04/30.09.2021 Heard learned counsel for the appellant Mr. Sarju Prasad and Mr.
P.K. Appu, learned A.P.P. on the prayer for suspension of sentence made
by the appellant through I.A. No. 2463 of 2021.
The sole appellant stands convicted for the offences punishable
under Sections 366,376 of the I.P.C. and section 4 & 12 of the POCSO
Act by the impugned judgment dated 27.09.2019 passed in Special
POCSO Case No.15 of 2017 by the court of learned Additional Sessions
Judge III, Bokaro and has been sentenced to undergo R.I.10 years with a
fine of Rs.10,000/- and a default sentence u/s 376 I.P.C; R.I. for 7 years
and a fine of Rs.5000/- and a default sentence u/s 366 I.P.C by the
impugned order of sentence of the same date. No separate sentence has
been awarded under the POCSO Act in view of Section 42 of the POCSO
Act.
Learned counsel for the appellant submits that the prosecution has
not been able to prove that the victim was minor as no date of birth
certificate was adduced or any medical assessment of her age has been
made. There is no proof of any sexual assault as prosecution has failed to
bring on record any medical report of her examination. It is submitted that
the victim P.W.5 remained with the appellant for about 1 month when she
travelled from Phusro to Barkakana, thereafter to Patna and finally to
Punjab and says that she did not raise any hue and cry that she was being
forcibly taken away. Therefore, there is total lack of inducement. The
statement of P.W.1 mother of the victim shows that victim had apologized
to her after return saying that she had committed a mistake. P.W.4, brother
of the victim has also stated that the victim was staying with the appellant
as husband and wife. It is true that the victim had been brought before the
police station on 13.01.2016 by the father and wife of the appellant along
with wife of younger brother of the appellant. It is submitted that the
conviction under Section 366A has therefore not been recorded. But the
ingredients of rape are not made out, nor enticement to kidnap or abduct a
woman against her will would also not be made out on the weight of the
prosecution evidence. Appellant, therefore, may be enlarged on bail by
suspending his sentence, since he is in custody since 27.09.2019.
Learned A.P.P. has opposed the prayer. He submits that the
informant, brother of the victim P.W.2 lodged the F.I.R on 16.12.2015
alleging that on 07.12.2015 the victim aged about 14 years went out and
was enticed by the appellant, who later on called on phone and informed
the informant P.W.2 that she is with him. It is submitted that appellant is a
married person with three daughters and has indulged in forcible
intercourse with the minor victim, as per the statement of victim P.W.5
during trial, while she was at Punjab with him. Therefore, appellant
should 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.
Having regard to the materials placed on record, it appears that no proof
of age of the victim or medical report has been brought on record by the
prosecution during trial and that the victim in her deposition as P.W.5 has
stated that she never raised any cries while she was going with the
appellant from one place to another up to Punjab. Therefore, we are
inclined to grant the privilege of suspension of sentence to the appellant.
Accordingly, the 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 Additional Sessions Judge III, Bokaro
in connection with Special POCSO Case No.15 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. 2463 of 2021 stands allowed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
A.Mohanty
